NLRB v. Canning: Defining the Scope and Duration of Presidential Recess Appointments

NLRB v. Canning: Defining the Scope and Duration of Presidential Recess Appointments

Introduction

In NATIONAL LABOR RELATIONS BOARD v. NOEL CANNING (573 U.S. 513, 2014), the United States Supreme Court addressed the constitutional limits of the President's power to make recess appointments under the Recess Appointments Clause. The case emerged from a labor dispute where Noel Canning, a Pepsi–Cola distributor, challenged the validity of three appointments to the National Labor Relations Board (NLRB), arguing that these appointments were made without the Senate's consent during an inappropriate recess. The core issues centered on whether the President's recess appointments extended to intra-session recesses and whether they could fill vacancies that existed prior to the recess.

Summary of the Judgment

The Supreme Court, in a majority opinion authored by Justice Breyer, affirmed the decision of the Court of Appeals for the District of Columbia Court of Appeals. The Court held:

  • The Recess Appointments Clause grants the President the authority to fill vacancies during any recess of the Senate—both inter-session and intra-session—provided the recess is of sufficient duration.
  • A recess must generally be longer than three days and less than ten days to fall within the President's appointment power, with the majority suggesting that breaks longer than ten days may qualify under exceptional circumstances.
  • The phrase "vacancies that may happen during the recess of the Senate" encompasses both vacancies that arise during the recess and those that existed prior to the recess but continue into it.
  • The Senate is deemed to be in session during pro forma sessions unless it lacks the capacity to conduct business, based on its own rules.

Consequently, the appointments made by President Obama in this case were deemed invalid because they were made during a brief three-day recess and filled vacancies that existed prior to the recess.

Analysis

Precedents Cited

The majority opinion extensively analyzed historical practices and previous jurisprudence to interpret the Recess Appointments Clause:

  • MYERS v. UNITED STATES (272 U.S. 52, 1926): Established that the President requires the Senate's consent for appointments, underscoring the balance of powers.
  • MARBURY v. MADISON (1 Cranch 137, 1803): Affirmed the role of the judiciary in interpreting the Constitution.
  • MISTRETTA v. UNITED STATES (488 U.S. 361, 1989): Highlighted the importance of historical practice in constitutional interpretation.
  • THE POCKET VETO CASE (279 U.S. 655, 1929): Demonstrated judicial deference to historical governmental practices.
  • Historical documents and opinions from early Attorneys General, such as Edmund Randolph and William Wirt, which interpreted the Clause narrowly.

These precedents collectively informed the Court's determination that the President's recess-appointment power is broader than previously interpreted by lower courts.

Legal Reasoning

The Court's reasoning was anchored in both textual analysis and historical practice:

  • Textual Ambiguity: The phrase "the recess of the Senate" was found to be ambiguous, potentially encompassing both inter-session and intra-session recesses based on founding-era dictionaries and usages.
  • Historical Practice: Presidents have made recess appointments during intra-session recesses for over a century without formal objection from the Senate, supporting a broader interpretation.
  • Purpose of the Clause: The Clause aims to ensure the continuous functioning of the government by allowing the President to fill vacancies when the Senate is unavailable for confirmation.
  • Senate's Authority: The Court deferred to the Senate's determination of when it is in session, provided it retains the capacity to conduct business, aligning with the Constitution's delegation of legislative procedures to the Senate.
  • Duration of Recess: A recess must typically exceed three days to trigger the appointment power, aligning with the Adjournments Clause's de minimis standard.

The majority emphasized that historical acceptance and the functional necessity of recess appointments justified an expansive interpretation, ensuring governmental operations are not impeded by short or intra-session recesses.

Impact

The decision in NLRB v. Canning has significant implications for the balance of power between the Executive and Legislative branches:

  • Expansion of Presidential Power: The ruling affirms the President's ability to make recess appointments during intra-session breaks, potentially reducing the Senate's control over appointments.
  • Limitations on Recess-Appointees: Appointments made during short recesses (under three days) are invalid, curbing the President's power to make fleeting appointments without Senate consent.
  • Judicial Deference to Historical Practice: The decision underscores the importance of historical governmental practices in constitutional interpretation, potentially influencing future cases involving ambiguous constitutional clauses.
  • Strategic Legislative Behavior: The Senate may adjust its scheduling and recess practices to influence the President's recess appointment opportunities.

Overall, the ruling strengthens the Executive's flexibility in staffing but introduces new strategic considerations for the Senate in managing its recesses.

Complex Concepts Simplified

Recess Appointments Clause

The Recess Appointments Clause, found in Article II, Section 2, Clause 3 of the U.S. Constitution, grants the President the authority to fill vacancies that occur when the Senate is in recess. These appointments last until the end of the Senate's next session.

Intra-session vs. Inter-session Recesses

  • Inter-session Recess: The period between two formal sessions of the Senate.
  • Intra-session Recess: Breaks within a single formal session, such as weekend breaks or brief adjournments.

The Court determined that the Clause applies to both types, meaning the President can make appointments during any recess, provided it meets the duration criteria.

Pro Forma Sessions

Pro forma sessions are short, nominal meetings of the Senate scheduled during a recess, where no substantive business is conducted. These sessions are used to prevent the Senate from being officially in recess, thereby limiting the President's ability to make recess appointments.

Vacancies

A vacancy refers to an unfilled position or office within the government. Under the Clause, vacancies can either occur during a recess or persist into a recess from a previous time.

Adjournments Clause

Found in Article I, Section 5, Clause 4 of the Constitution, it restricts either House of Congress from adjourning for more than three days without the consent of the other House. The Court used this as a reference point to determine the minimum duration of a recess required to activate the President's appointment power.

Conclusion

NLRB v. Canning represents a pivotal moment in the interpretation of the Recess Appointments Clause, affirming a broad scope for presidential authority in making recess appointments. By recognizing both inter-session and intra-session recesses and establishing duration thresholds, the Court ensures that the Executive branch can maintain governmental functionality without undue interference from the Senate. However, this expansion of power introduces new dynamics in the interplay between the President and the Senate, necessitating strategic adjustments in legislative scheduling and appointment processes. The decision underscores the enduring influence of historical practices in constitutional interpretation, shaping the future of executive-legislative relations in the United States.

Case Details

Year: 2014
Court: U.S. Supreme Court

Judge(s)

Stephen Gerald Breyer

Attorney(S)

Donald B. Verrilli, Jr. , Solicitor General, for Petitioner. Noel J. Francisco , Washington, DC, for Respondents. Miguel Estrada , for Senate Republican Leader Mitch McConnell, et al. as amici curiae, by special leave of the Court, supporting the respondents. Laurence Gold , of counsel, Bradley T. Raymond , James B. Coppess , Counsel of Record, Washington, DC, for Petitioner. Gary E. Lofland , Halverson Northwest Law Group, Yakima, WA, Lily Fu Claffee , Rachel L. Brand , Steven P. Lehotsky , National Chamber Litigation Center, Inc., Noel J. Francisco , Counsel of Record, G. Roger King , James M. Burnham , Washington, DC, for Respondent Noel Canning. Lafe E. Solomon , Acting General Counsel, Celeste J. Mattina , Deputy General Counsel, John H. Ferguson , Margery E. Lieber , Associate General Counsels, Linda Dreeben , Deputy Associate General Counsel, National Labor Relations Board, Donald B. Verrilli, Jr. , Solicitor General, Counsel of Record, Stuart F. Delery , Assistant Attorney General, Edwin S. Kneedler , Deputy Solicitor General, Beth S. Brinkmann , Deputy Assistant Attorney General, Curtis E. Gannon , Assistant to the Solicitor General, Douglas N. Letter , Scott R. McIntosh , Melissa N. Patterson , Benjamin M. Shultz , Attorneys, Department of Justice, Washington, DC, for Petitioner.

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