Image 01 Image 03

SCOTUS: Your NLRB Recess Appointments are Invalid, Mr. President

SCOTUS: Your NLRB Recess Appointments are Invalid, Mr. President

The Supreme Court has unanimously ruled that President Obama’s recess appointments to the NLRB are invalid.

Last year, Noel Canning asked the Supreme Court to determine the validity of President Obama’s recess appointments to the National Labor Relations Board. Those appointments went through during a very short recess that occurred between two pro forma sessions of the United States Senate. Canning argued that the 3 day recess was not long enough to trigger the Recess Appointments Clause of the Constitution, which normally gives the President the power to “fill up all Vacancies that may happen during the recess of the Senate.”

In today’s opinion, the Supreme Court unanimously agreed with Canning, saying that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess–of sufficient length. Unfortunately for the Obama Administration and its appointees, the Constitution does not specify how long a recess must be in order to trigger the Clause:

The Adjournments Clause, Art. I, §5, cl. 4, reflects the fact that a 3-day break is not a significant interruption of legislative business. A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President’s recess-appointment power. Moreover, the Court has not found a single example of a recess ap-pointment made during an intra-session recess that was shorter than 10 days. There are a few examples of inter-session recess appointments made during recesses of less than 10 days, but these are anomalies. In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause.

Interestingly (and to the great chagrin of Justice Scalia, who joined the judgment but wrote a separate concurring opinion,) the Court allowed historical practice and the longstanding “practice of the government” to influence its reasoning:

…in interpreting the Clause, the Court puts significant weight upon historical practice. The longstanding “practice of the government,” McCulloch v. Maryland, 4 Wheat. 316, 401, can inform this Court’s determination of “what the law is” in a separation of powers case, Marbury v. Madison, 1 Cranch 137, 176. There is a great deal of history to consider here, for Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that such appointments can be both necessary and appropriate in certain circumstances. The Court, in interpreting the Clause for the first time, must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.

Thus, the death blow:

Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.

This decision is narrow, but its finer points don’t bode well for the public employee parties in Harris v. Quinn. It also gives hope to Senate and House conservatives looking for a way to block future appointments that fall within the scope of the Recess Appointments Clause.

You can read the full opinion here.


Donations tax deductible
to the full extent allowed by law.


Well, it’s obvious that all 9 members of SCOTUS are racist.

nordic_prince | June 26, 2014 at 1:18 pm

Now if we could just get some muscle behind these decisions, instead tut-tutting like a bunch of old ladies. “Gee, Mr. President, you shouldn’t have done that. Shame on you, you naughty boy. If this keeps up I might have to reprimand you…”

So sick of this j@ck@ss getting away with cr@p and no one standing up to him about it. At the very least, he deserves a nice, long vacation in Leavenworth. And hit him where it really hurts – with no golf.

rorschach256 | June 26, 2014 at 1:22 pm

Now the 64 billion dollar question (inflation you know): does that mean that the recess appointments to the NLRB are null and void? if so the NLRB did not have a quorum and that means all of the rulings of the NLRB since the recess appointments were made are similarly null and void correct? I’ve seen multiple articles about the SCOTUS ruling but none have been clear on the downstream effects of this ruling.

    Obama has thumbed his nose at Congress, the US Constitution, and the will of the good people of the United States since he took office. I seriously doubt he’ll submit to the will of nine justices, and expect nothing will come of this decision.

    “does that mean that the recess appointments to the NLRB are null and void? ”

    Yes, they are all null and void. BUT….

    The same Board Members have since then been confirmed, and are NOW sitting legally.

    All they have to do is, with one vote ‘reaffirm’ all prior rulings in question, and it’s moot, for now.

      I’d forgotten about that deal. Obama sure was thinking ahead that time. He loses, but he wins, because his opposition couldn’t be bothered to try harder.

      platypus in reply to pjm. | June 26, 2014 at 10:38 pm

      I don’t doubt they will do that but any appeal from such a retroactive validation would go to the DC district court which is bound by the void part. The issue would be whether the board has authority to retroactively validate. Based on my experience with admin litigation, I’m pretty sure that the board has no inherent authority that could operate that way. NLRB may not even have authority to correct its own errors beyond scrivener’s errors.

There are a few examples of inter-session recess appointments made during recesses of less than 10 days, but these are anomalies.

This is tautological doubletalk. Well, of course things which don’t fit in to the pattern they claim to see are anomalies. “We see a pattern which is verified by history … excepting those instances when it isn’t.” Not really a sound basis for law, is it?

We’re paying these people; they’re not poor overworked volunteers. They should be able to deliver something at bit less silly than that.

“The Court rules that all action taken during the presidency of Barack Hussein Obama are null and void, as are any future action that may be taken. All parties are ordered to undo and give redress or they will be held in contempt.”

Well, I can dream, can’t I?

    JackRussellTerrierist in reply to mzk. | June 26, 2014 at 9:37 pm

    You forgot this part of the dream, “All parties’ assets are hereby frozen.”

“does that mean that the recess appointments to the NLRB are null and void? ”

Yes, they are all null and void. BUT….

The same Board Members have since then been confirmed, and are NOW sitting legally.

All they have to do is, with one vote ‘reaffirm all prior rulings in question’, and it’s moot, for now.

JackRussellTerrierist | June 26, 2014 at 9:31 pm

Amy, could you give us a little bit about Harris v. Quinn? What is it about? What is the legal question at issue? Many of us are not lawyers but are interested in cases mentioned on LI from time to time.

Thank you.

JackRussellTerrierist | June 26, 2014 at 9:34 pm

The “unanimous” aspect of this is pleasingly shocking. Ginsburg? Really?

    Bruno Lesky in reply to JackRussellTerrierist. | June 27, 2014 at 1:19 am

    You might try reading the other comments. Check Spiny Norman’s link, above.

      JackRussellTerrierist in reply to Bruno Lesky. | June 27, 2014 at 2:15 am

      I did read it – before I even read this thread on LI, and that’s all well and good for those of us interested in the sometimes internecine nature of the SCOTUS. Many, many years ago I read Woodward and Armstrong’s The Brethren and learned something about relationships between justices and the Court’s internal processes. I’ve been interested in the Court ever since.

      But John Q. Public, true to form, will NOT read the Powerline article, unfortunately. Mr. Public will only hear that another obamullah scam was dealt a major, “unanimous” smackdown from the supremes. The fact that some of the justices had to be dragged kicking and screaming to the unavoidable logic of the smackdown and their determined avoidance of obamullah’s coyness in making the recess appointment is an arcane subject that most, again unfortunately, would not understand and couldn’t care less about.

      The Powerline blog also points out the surprise of the APPARENT unanimity of the decision before it goes into the details about how it wasn’t exactly unanimous except on the final count.

      It is that APPARENT unanimity that I’m pleased about, and I hope the slimestream media chokes to death in having to publish it.

      I remain surprised that Ginsburg did not find some ridiculously convoluted weasel way of formally dissenting.

So Boeing can start production in S.C. now, right?

Bruno Lesky | June 27, 2014 at 1:49 pm

OK. Thanks for responding. Agree to disagree about Ginsburg’s motivation in this case.

Agree that MSM will either not or mis-report this event. JQP does not attend to even these sources. A 2010 Pew Research Center poll revealed that 8% think Thurgood Marshall is the Chief Justice. 6% think John Paul Stevens. 4% think Harry Reid. Less than 30% pick Roberts. Must have been multiple-choice. Must have been a high-grade JQP sample.

I haven’t read The Brethern. I’ll check it out. Thx.