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 means the Board lacks 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 unusual 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 government has not yet decided whether to appeal the D.C. Circuit's decision, and the NLRB has stated that it will continue to conduct business as usual. Meanwhile, the Noel Canning decision is being invoked to challenge NLRB decisions in dozens of other cases around the country. On this previously recorded conference call held in February, the speakers discuss the Noel Canning case itself, whether the Board can continue to function without Supreme Court resolution of the validity of the recess appointments, and what the decision means for current and past recess appointments to other agencies.
- John P. Elwood, Partner, Vinson & Elkins LLP
- Hon. Howard M. Radzely, Boeing, Inc.
- Moderator: Mrs. Rachel L. Brand, Chief Counsel for Regulatory Litigation, National Chamber Litigation Center, U.S. Chamber of Commerce
- Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society