## Facts

- The National Labor Relations Act requires the National Labor Relations Board (NLRB) to have at least three members present to act.
- The NLRB ordered Noel Canning, a corporate employer, to execute a collective-bargaining agreement with a union after finding an unlawful refusal to do so.
- In late 2011, the Senate adopted a schedule of pro forma sessions every three days, stating no business would be transacted.
- Between the January 3 and January 6, 2012 pro forma sessions, the President appointed three NLRB members under the Recess Appointments Clause.
- Noel Canning challenged the NLRB order, arguing the Board lacked a lawful quorum because the appointments were invalid while the Senate was not in “the Recess.”

## Issues

1. Whether “the Recess of the Senate” in the Recess Appointments Clause includes intra-session recesses or only inter-session recesses.
2. Whether “Vacancies that may happen during the Recess” includes vacancies that preexist a recess and continue into it, or only vacancies that first arise during the recess.
3. Whether pro forma sessions may be disregarded so that brief adjournments can be treated as one longer recess for Recess Appointments Clause purposes.

## Decision

- The Supreme Court affirmed the D.C. Circuit’s judgment that the appointments were invalid, but on narrower grounds.
- “The Recess” includes both inter-session and intra-session recesses, if of sufficient length.
- “Vacancies that may happen during the Recess” includes both vacancies arising during a recess and vacancies that arose earlier but continue during the recess.
- The Senate is in session when it says it is, so long as under its rules it retains the capacity to transact business; pro forma sessions count as sessions under that standard.
- A three-day recess is too short to trigger the Clause; a recess longer than three but shorter than ten days is presumptively too short absent extraordinary circumstances.
- Because the appointments occurred during only a three-day adjournment between pro forma sessions, the recess appointment power did not apply; the NLRB lacked a valid quorum and its order was invalid.

## Legal Principles

- The Recess Appointments Clause permits the President to fill existing vacancies during recesses (intra-session or inter-session) of sufficient length.
- The Clause covers vacancies that arise before a recess and continue into it, as well as vacancies that arise during the recess.
- In determining whether the Senate is in session, the Senate’s own declaration controls if it retains the capacity to conduct business under its rules.
- Pro forma sessions break up adjournments for Recess Appointments Clause analysis when the Senate retains capacity to transact business.
- Recess duration limits: three days is categorically insufficient; recesses of more than three but less than ten days are presumptively insufficient absent extraordinary circumstances.

## Conclusion

The Court held that although the Recess Appointments Clause can apply to intra-session recesses and to preexisting vacancies, it did not authorize appointments made during a three-day adjournment punctuated by pro forma sessions where the Senate retained capacity to conduct business; the resulting NLRB action lacked a lawful quorum and was invalid.


NLRB v. Noel Canning, 573 U.S. 513 (2014)