U.S. Supreme Court to Rule Upon NLRB Recess Appointments
By Stephen R. McCutcheon, Jr.
The U.S. Supreme Court has granted review in National Labor Relations Board v. Noel Canning (docket 12-1281) to decide whether President Obama violated the constitution when he skipped the required consent of the Senate in making appointments to the National Labor Relations Board. Article II Section 2 of the Constitution provides the President with the power to fill vacancies “that may happen during the recess of the Senate.” This was intended to permit appointments and facilitate the continued functioning of government when a vacancy arose during the Senate’s summer recess – when Senators were in their home states – and Senators were not available to give their consent to the filling of a vacancy.
More recently however, the recess appointments clause of the Constitution has been used as a tool to not only avoid the moderation that is a natural result of requirement that the President obtain the advice and consent of the Senate, but to make appointments of officers who have previously been rejected as unacceptable. In Noel Canning v. National Labor Relations Board the Court of Appeals for the D.C. Circuit rejected this abuse of the recess appointments clause. The D.C. Circuit court confirmed the historic understanding of the limited scope of the President’s recess appointment power to the making of appointments when the Senate has taken its recess at the end of the year’s session, and only for those vacancies that arose during the recess.
The NLRB has lost two federal appeals court cases over the President’s appointments, but has largely ignored the appellate courts’ rulings and continued business as usual. As a result, for more than a year the actions of the NLRB have been of questionable validity. The Supreme Court’s grant of review will put this uncertainty to rest. But this question of the scope of the recess appointment power extends beyond the NLRB context, and the Supreme Court’s ruling in National Labor Relations Board v. Noel Canning will affect the power of future administrations to bypass the Senate in making appointments to numerous federal entities.