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Former NLRB Board Member Offers Opinion on Noel Canning

January 20, 2014
Labor and Employment Blog Post

As a follow-up to our previous blog, this past Monday, January 13, 2014, the U.S. Supreme Court heard oral arguments in NLRB v. Noel Canning, the controversial case dealing with the President's ability to make appointments while the Senate is in recess, as well as what constitutes a recess. The case comes to the Supreme Court from the D.C. Circuit Court of Appeals where the President's 2012 NLRB appointments, which occurred while the Senate was meeting in pro forma sessions, were found unconstitutional.

During the 90 minutes of oral arguments, the justices appeared willing to curb the President's power in this regard. U.S. Solicitor General, Donald B. Verrilli, Jr., argued for the administration that the Recess Appointments Clause has been broadly interpreted since George Washington, where government officials were appointed by the President during both intra-session recesses, as well as inter-session recesses, without Senate consent. Verrilli argued that invalidating the President's recess appointments to the Board would diminish the legitimacy of multiple recess appointments made throughout history. The Court, however, appeared skeptical, noting that the framers' intent in writing the clause was inconsistent with its modern application. When the Constitution was drafted, justices noted, the Clause was added to ensure the government would stay active, and Senators engaged in lengthy recesses because transportation on and communication resources did not allow members to be available at a moments notice. Nowadays, as stated by Justice Ruth Bader Ginsburg, "the Senate is always available," thereby undermining the necessity of a broad interpretation of the clause.

For Noel Canning, attorney Noel Francisco argued that an overly broad interpretation of the Clause allows for possible abuse of presidential power and eliminates the "structural protections" granted to the Senate by the Constitution. Moreover, Francisco argued the Senate should be able to decide when it is officially in recess so that it has some power in regulating when the President can exercise his recess appointment power. Justice Elena Kagan, among other justices, agreed with Francisco in noting that "it really is the Senate's job to determine whether they're in recess or whether they're not."  Justice Ginsburg, though, stated that granting the Senate such power "would destroy the Recess Clause" as the Senate could declare itself to be in constant session through the use of pro-forma sessions. Although most Justices appeared to agree with portions of Francisco's argument, it was unclear whether they are willing to fully curb the President's power.

The court is expected to issue a ruling by June. The case could have widespread impact as it could invalidate hundreds of Board rulings involving panel members unlawfully appointed by President Obama when the Senate was not in an intersession recess.

Dennis Devaney, Varnum attorney and a former NLRB Board Member who was appointed by President Reagan, attended the oral argument on behalf of one of his clients. At the time of the President's recess appointments, Devaney had testified before the House Education and Labor Committee that he believed the appointments by the President were likely unlawful and certainly bad public policy because there would be a cloud over all decisions rendered by the potentially unconstitutional recess appointees to the NLRB. Based on observation of the argument, Devaney believes it is likely that the Supreme Court will decide that the appointments were not in accordance with the Constitutional language. The open question is likely to be whether the Court voids the appointments on narrower or broader legal grounds. If the recess appointments are held invalid, the current five member Board, all of whom have been confirmed by the U.S. Senate, will have to redo cases that were decided by the unconstitutionally constituted Board or reach settlements with the parties to those cases.

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