Noel Canning: Actually a big win for the President

Bad case for the NLRB. Not so bad for the President. The headlines are saying "Presidential recess appointments were unconstitutional." True. And unanimous. Three appointments to the NLRB were made in such a way as to violate the Recess Appointments Clause of the constitution. NLRB v. Noel Canning (US Supreme Court 06/26/2014).

Yet the President won on two major points.

Noel Canning challenged an order of the NLRB on the ground that the Board lacked a quorum because three of the five Board members had been invalidly appointed. On December 17, 2011 the Senate passed a resolution providing for a series of “pro forma session[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012. The President appointed three Board members between two of those pro forma sessions.

So the US Supreme Court explained how the Recess Appointments Clause works:

  1. Recess appointments are OK during intra-session recesses as well as inter-session recesses. By 5:4 vote, this rejected the view of the DC Circuit. An important Presidential win.
  2. The phrase “vacancies that may happen during the recess of the Senate” applies both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. By 5:4 vote, this rejected the view of the DC Circuit. An important Presidential win.
  3. Generally, an intra-session recess must be at least 10 days long in order for the President to make a recess appointment. This is what made the appointments unconstitutional in this case, because the recess was only for three days.

[For a list of current employment law cases, see Supreme Court Watch.]