In Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held that the President's 2012 recess appointments to the National Labor Relations Board were unconstitutional, which meant the Board lacked a quorum to conduct business. The President made these appointments during an intra-session recess shorter than three days, a move no previous President had tried. But the court's reasoning in Noel Canning extended beyond these circumstances. Taking an orginalist approach to the Recess Appointments Clause, the court held that the President cannot make recess appointments during intra-session recesses at all, but only during the recess that occurs between the end of one session of Congress and the beginning of the next. The court held further that the President cannot fill a vacancy with a recess appointment unless the vacancy arises during that same recess. This reasoning calls into question the validity of virtually every recess appointment in modern history. The NLRB stated that it would continue to conduct business as usual. The government subsequently petitioned the Supreme Court for cert to hear the case. Later last year, the Senate confirmed President Obama’s NLRB nominees, and the all Board seats are currently filled. Meanwhile, the Noel Canningdecision is being invoked to challenge NLRB decisions in dozens of other cases around the country.
On January 13, 2014, the Supreme Court will hear oral arguments in NLRB v. Noel Canning. This teleforum will discuss the Noel Canning case itself, whether the Board validly continued to function without Supreme Court resolution of the validity of the recess appointments, and how the decision is likely to be decided.
- John Elwood, Partner, Vinson & Elkins LLP
- Moderator: Christian Corrigan, Director of Publications, The Federalist Society