NLRB v. Noel Canning
Headline: Recess appointment ruling invalidates three NLRB appointees, narrows when presidents can use recess appointments and limits unilateral appointments made during short pro forma Senate breaks.
Holding: The Court ruled the President lacked authority to make the three January 2012 NLRB recess appointments because the Senate was in session during pro forma sessions and the three‑day break was too short to trigger the Recess Appointments Clause.
- Voids the specific NLRB recess appointments and related agency actions.
- Clarifies when presidents may use recess appointments during intra‑session breaks.
- Increases legal risk for agency acts signed by contested appointees.
Summary
Background
Noel Canning, a Pepsi‑Cola distributor, refused to sign a union contract. The National Labor Relations Board ordered the company to sign and make workers whole. Noel Canning challenged that order, saying three of five Board members had been named by the President during a brief Senate break and were therefore invalid. The Senate had adopted a December 17, 2011 resolution scheduling pro forma sessions every Tuesday and Friday. The President made three appointments on January 4, 2012, between pro forma sessions.
Reasoning
The Court addressed three plain questions: whether the Recess Appointments Clause covers short intra‑session breaks; whether it covers vacancies that already existed before a recess; and how to count a recess when the Senate holds pro forma sessions. The Court wrote that the Clause can reach both inter‑session and substantial intra‑session breaks, and that it can cover vacancies that existed before a recess. The Court relied on historical practice and the Clause’s purpose. But the Court also held that the Senate is in session when it says so if, under its rules, it can do business. Because the Senate’s pro forma sessions left it able to act, the January 4 appointments fell in a three‑day interruption. A three‑day break is too short to trigger the Clause, so those appointments were invalid and the Board lacked a lawful quorum when it issued the order.
Real world impact
The decision voided these particular appointments and undercut Board actions taken by those members. It clarifies that presidents may make recess appointments during longer intra‑session breaks and to pre‑existing vacancies, but it also empowers the Senate to block such appointments with pro forma sessions. The ruling leaves other similar challenges pending.
Dissents or concurrances
Justice Scalia agreed the three appointments were invalid but disagreed with the Court’s broader interpretation. He would limit the Clause to inter‑session breaks and vacancies that arise during the recess, warning that the majority’s view expands executive power.
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