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
- Whether “the Recess of the Senate” in the Recess Appointments Clause includes intra-session recesses or only inter-session recesses.
- 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.
- 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.