Summary
The Supreme Court held that the Recess Appointments Clause applies to both intra-session and inter-session recesses of sufficient length and to vacancies that arise before a recess but remain vacant during it. The Court further held that the Senate was in session during the pro forma sessions at issue because it retained the capacity to conduct business under its rules. Because the appointments occurred during a three-day recess, the President lacked authority to make them, and the D.C. Circuit's judgment was affirmed.
Topics
Practice areas
Questions Presented
- Whether the Recess Appointments Clause applies to intra-session as well as inter-session recesses.
- Whether the Recess Appointments Clause applies to vacancies that arose before a recess but continued to exist during the recess.
- Whether the Senate's pro forma sessions constituted sessions for purposes of the Recess Appointments Clause.
- Whether a three-day recess between pro forma sessions was sufficiently long to trigger the President's recess-appointment power.
Holdings
- The Recess Appointments Clause applies to both intra-session and inter-session recesses, provided the recess is of sufficient length.
- The phrase "vacancies that may happen during the recess" includes vacancies that arose before the recess but continued to exist during the recess.
- 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.
- A three-day recess is too short to trigger the Recess Appointments Clause; a recess of more than three but less than ten days is presumptively too short, subject to a possible exception for extraordinary circumstances. Because the challenged appointments occurred during a three-day recess, the President lacked authority to make them, and the NLRB order was invalid.
Key quotations
“We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.” (573 U.S. ___, opinion at 40-41)
“We hold that, 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.” (573 U.S. ___, opinion at 34)
“Given our answer to the last question before us, we conclude that the Recess Appointments Clause does not give the President the constitutional authority to make the appointments here at issue.” (573 U.S. ___, opinion at 41)
Factual background
The NLRB issued an order against Pepsi-Cola distributor Noel Canning after finding that the distributor unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union. Three of the five NLRB members—Sharon Block, Richard Griffin, and Terence Flynn—were appointed by the President on January 4, 2012, during a period when the Senate held twice-weekly pro forma sessions. Noel Canning challenged the order, asserting that the appointments were invalid and therefore left the Board without the quorum required to act.
Procedural history
The NLRB found that Noel Canning had unlawfully refused to reduce to writing and execute a collective-bargaining agreement and ordered it to execute the agreement and make employees whole. Noel Canning sought judicial review in the D.C. Circuit, arguing that the NLRB lacked a quorum because three members appointed by the President during a purported Senate recess were invalidly appointed. The D.C. Circuit agreed that the appointments were invalid, though on narrower grounds concerning intra-session recesses and pre-recess vacancies. The Supreme Court affirmed the judgment on the ground that the Senate was in session during the relevant pro forma sessions and that the appointments occurred during a three-day recess.