In a lengthy opinion authored by Justice Stephen Breyer, and drawing heavily on historical practice of Presidents and the Senate, the United States Supreme Court has upheld the decision of the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB, concluding that President Obama’s three recess appointments to the National Labor Relations Board in January 2012 (Sharon Block, Richard Griffin, and Terence Flynn) were invalid. The Court upheld the right of the President to make recess appointments both inter- and intra-session, but held that it is the Senate that decides when it is in session by retaining the power to conduct business pursuant to its own rules. The Court also found that a recess of three days or less is too short to allow for a valid recess appointment and that a recess of from four to less than ten days “is presumptively too short” to permit the President to make a recess appointment, except in “unusual circumstances,” such as a “national catastrophe”. (The recess here was three days.) The Court also decided that the recess appointment power applies to appointments that first come into existence during a recess and to those that initially occur before a recess but continue to exist during a recess.
As a result of the decision, hundreds of Board decisions likely are now invalid. In addition, the actions of NLRB Regional Directors who were appointed during the time a valid Board quorum did not exist also are subject to challenge.
We will review the Supreme Court’s decision and provide additional commentary shortly.