National Labor Relations Board v. Noel Canning Company
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| National Labor Relations Board v. Noel Canning Company | |
| Reference: Docket No. 12-1281 | |
| Term: 2013 | |
| Important Dates | |
| Argued: January 13, 2014 Decided: June 26, 2014 | |
| Outcome | |
| United States Court of Appeals for the District of Columbia Circuit affirmed | |
| Majority | |
| Stephen Breyer • Ruth Bader Ginsburg • Elena Kagan • Anthony Kennedy • Sonia Sotomayor | |
| Concurring | |
| Samuel Alito • Chief Justice John Roberts • Antonin Scalia • Clarence Thomas | |
National Labor Relations Board v. Noel Canning Company is a case decided on June 26, 2014, by the United States Supreme Court in which the court defined the scope of the Recess Appointments Clause of the U.S. Constitution. The court held that the president can only make recess appointments during recesses that occur between formal sessions of the United States Senate.[1]
Why it matters: National Labor Relations Board v. Noel Canning Company placed limits on the president's authority to perform recess appointments. Presidents had used recess appointments in the past to approve nominees who would otherwise have had difficulty being confirmed by the United States Senate. The case clarified that the president cannot use recess appointments to circumvent confirmation by the Senate when making appointments to fill leadership positions at federal agencies. Read more here.[2]
Background
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Recess Appointments Clause
National Labor Relations Board v. Noel Canning Company is a case concerning the Recess Appointments Clause of the U.S. Constitution. The clause is found under Article II, Section 2, Clause 3. The clause reads:[3]
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The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. [4] |
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Collective bargaining negotiations
In 2010, Noel Canning Co., a Pepsi-Cola distributor, entered into negotiations with its employee union. In December 2010, Noel Canning agreed to submit two wage and pension plans that would be subject to a vote of the union membership. The membership approved one of the proposals. Noel Canning, however, refused to include the changes in a new collective bargaining agreement. Noel Canning argued that the negotiations and proposals were not tantamount to a binding agreement.
The union filed a complaint with the National Labor Relations Board (NLRB). The union charged Noel Canning with unfair labor practices in violation of the National Labor Relations Act. An administrative law judge (ALJ) ruled that the proposal Noel Canning presented, which the union membership approved, was binding. The ALJ then ordered Noel Canning to sign the collective bargaining agreement. Noel Canning appealed that ruling, which the NLRB upheld.[1][5]
Challenge to the Recess Appointments Clause
Noel Canning Co. subsequently appealed to the United States Court of Appeals for the District of Columbia Circuit. Noel Canning argued that three of the five members of the NLRB "had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act."
The NLRB panel that heard Noel Canning's appeal of the ALJ's order consisted of one member appointed by President Barack Obama (D) and confirmed by the U.S. Senate in 2010 and two members appointed by Obama without U.S. Senate confirmation in January 2012. The president appointed these individuals through the Recess Appointments Clause of the U.S. Constitution.
The Recess Appointments Clause normally gives the president authority to fill existing vacancies which during a congressional recess, but the U.S. Senate met in pro forma meetings every three business days between December 2011 and the end of January 2012. In light of these pro forma sessions, Noel Canning argued that the U.S. Senate was not in formal recess during the period in which the two members in question were appointed via the Recess Appointments Clause. Accordingly, Noel Canning argued that the two members in question were not eligible to be appointed under the Recess Appointments Clause because the U.S. Senate was not in recess.[1][5]
D.C. Circuit decision
The United States Court of Appeals for the District of Columbia Circuit agreed that the appointments fell outside the scope of the Recess Appointments Clause. The court held that the words "the recess of the Senate" in the clause did not include recesses occurring within a formal session of Congress (a.k.a. intra-session recesses). Instead, the court held that the words "the recess of the Senate" applied only to recesses between formal sessions (a.k.a. inter-session recesses). As the second session of the 112th Congress began on January 3, 2012, the day before the President's appointments, the appointments in question occurred during an intra-session recess. Therefore, the court held that the appointments fell outside the scope of the Recess Appointments Clause.[1]
The court further held that the phrase "vacancies that may happen during the recess" applied "only to vacancies that come into existence during a recess." President Obama's appointees to the NLRB "were appointed ... before the beginning of the recess during which they were appointed. For this reason too the President's appointments were invalid." In light of this holding, the court held that the NLRB lacked a quorum of validly appointed members when it issued its order against Noel Canning. Accordingly, the NLRB's order was invalidated.[1]
Oral argument
Oral argument was held on January 13, 2014. The case was decided on June 26, 2014.[1]
Outcome
The judgment of the United States Court of Appeals for the District of Columbia Circuit was affirmed.[1]
Opinions
Opinion of the court
The judgment of the court was unanimous. Justice Stephen Breyer authored the opinion of the court for himself and Justices Ruth Bader Ginsburg, Elena Kagan, Anthony Kennedy, and Sonia Sotomayor. Justice Antonin Scalia authored an opinion concurring in the judgment only. Justice Scalia's opinion was joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas.
Justice Breyer noted that the case presented three questions,[1]
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The first concerns the scope of the words 'recess of the Senate.' Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? ... |
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In addressing the first question, Justice Breyer held that the phrase "recess of the Senate" covered both inter-session recesses and intra-session recesses "of substantial length." While asserting that the constitutional language was ambiguous, Justice Breyer wrote that the clause's purpose and history favored an interpretation that included intra-session recesses. In providing an extensive history of the clause, the court held that "if a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause ... And a recess lasting less than 10 days is presumptively too short."[1]
In considering the second question, Justice Breyer held that the phrase "vacancies that may happen during the recess of the Senate" provided for any and all vacancies, "including vacancies that come into existence while the Senate is in session."[1]
In examining the third question, Justice Breyer rejected the NLRB's argument that pro forma sessions must be considered as periods of recess. In examining the legitimacy of pro forma sessions, Justice Breyer noted, "for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here." Justice Breyer noted that deference to the Senate could not be absolute and that when the Senate is without capacity to transact Senate business, then the Senate "is not in session even if it so declares ... In that circumstance, the Senate is not simply unlikely or unwilling to act upon nominations of the President. It is unable to do so." Justice Breyer, however, noted that the Senate retained the ability to transact Senate business during the pro forma sessions at issue in this case and, thus, the Senate was in session when the president made his appointments to the NLRB under the Recess Appointments Clause. Accordingly, Justice Breyer held that the Recess Appointments Clause did not give the president the authority to make the appointments to the NLRB at issue in this case.[1]
Concurring opinion
Justice Antonin Scalia authored an opinion concurring in the judgment. His opinion was joined by Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas.
Justice Scalia argued that the Recess Appointments Clause was applicable only to inter-session breaks and he would have invalidated the appointments in question because they were made in the intra-session break. Justice Scalia argued that the plain text and the history of the clause did not support the majority's view that intra-session breaks were covered under the Recess Appointments Clause. Justice Scalia further argued that the majority's 10-day rule lacked any basis in the text of the Constitution. For these same reasons, Justice Scalia argued that the clause must be read as only giving the president the power to fill vacancies originally occurring during a recess.[5]
Commentary about the case
John Elwood, a former attorney for the U.S. Department of Justice's Office of Legal Policy under former President George W. Bush (R), weighed in on the court's decision in NLRB v. Noel Canning for SCOTUSblog. Elmwood argued that the government would be able to continue functioning in the absence of the president's recess appointment power, but that partisanship could result in obstruction:[6]
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Kristi Remington, an attorney who previously vetted nominations during the George W. Bush administration, offered her perspective on the decision to SCOTUSblog. Remington claimed that the inability to make presidential recess appointments would compel presidential administrations to seek nominees with bipartisan support in order to obtain enough votes for Senate confirmation:[6]
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Deepak Gupta, a former attorney for the Consumer Financial Protection Bureau (CFPB), commented to SCOTUSblog that the Senate's refusal to confirm a presidential nominee could result in what he described as nullification through the confirmation process:[6]
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Impact
This case clarified the limits of presidential recess appointments. Prior to the Supreme Court's ruling in this case, the Congressional Research Service issued a March 27, 2013, report in which the authors speculated that, should the Supreme Court affirm the D.C. Circuit in the case,[7]
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the likely effect ... would be a shift toward increased Senate control over the appointment of government officials and a decrease in the frequency of presidential recess appointments. Most prominently, the President would no longer be permitted to make intra-session recess appointments ... Moreover, the interpretation established in Noel Canning likely would provide Congress with nearly complete control over whether the President’s recess authority is triggered in the future ... the Senate would also appear free to enter extended intrasession recesses without the risk of triggering the President’s recess authority ... Congress also may discourage future presidential recess appointments by structuring the terms of newly created fixed term offices in a way that decreases the likelihood that they will become vacant during an intersession recess ... and ... by permitting the Senate to use scheduling practices, including pro forma sessions, to consistently prevent the President from making recess appointments, the restrictive interpretation adopted in Noel Canning tends to undermine the President’s appointment power in a way that could give rise to constitutional concerns under the separation of powers. [4] |
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In the period after the 2016 presidential election, there were some observers who argued that President Barack Obama could use the recess power to put Merrick Garland, his nominee to succeed Justice Scalia, on the U.S. Supreme Court after Senate Republicans refused to consider the nomination. The president, however, did not use a recess appointment on the Garland nomination.
See also
- Supreme Court of the United States
- History of the Supreme Court
- Supreme Court vacancy, 2016: An overview
- Impact of the 2016 election on the United States Supreme Court
- 2016 presidential candidates on the death of Antonin Scalia and the Supreme Court vacancy
- Process to fill the vacated seat of Justice Antonin Scalia
External links
Footnotes
- ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 Supreme Court of the United States (via Findlaw), National Labor Relations Board v. Noel Canning, et al., decided June 26, 2014
- ↑ SCOTUSblog, "Political consequences of NLRB v. Noel Canning," July 15, 2014
- ↑ The Heritage Guide to the Constitution, "Recess Appointments Clause," accessed November 18, 2016
- ↑ 4.0 4.1 4.2 4.3 4.4 4.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 5.0 5.1 5.2 Oyez.org, "National Labor Relations Board v. Noel Canning," accessed November 18, 2016
- ↑ 6.0 6.1 6.2 6.3 6.4 SCOTUSblog, "Political consequences of NLRB v. Noel Canning," July 15, 2014
- ↑ Congressional Research Service, "The Recess Appointment Power after Noel Canning v. NLRB: Constitutional Implications," March 27, 2013
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