National Labor Relations Board v. Noel Canning

Case Updates

In an opinion by Justice Breyer (9-0 on the judgment, 5-4 on the reasoning), the Court held that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess (intrasession or intersession) of sufficient length, and holds that the appointments here are invalid because they occurred during only a three-day recess.

The National Chamber Litigation Center (“Litigation Center”) and its co-counsel filed a brief in the Supreme Court on behalf of Noel Canning Corp. in its challenge to the President’s unconstitutional recess appointments to the NLRB. The case before the Court presents three questions regarding the President’s recess-appointment power under the Constitution.

On the first question presented, the brief argues that the Recess Appointments Clause empowers the President to fill vacancies “during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” By linking “the Recess” to the “next Session,” the Clause makes clear that the President may make unilateral appointments only during “the Recess” between enumerated Senate “Sessions.”

On the second question, the Recess Appointments Clause states that the President may make recess appointments only to fill “Vacancies that may happen during the Recess.” As the uniform understanding of this provision at the founding and for decades after confirms, the Clause means what it says: The vacancy must “happen during”—i.e., arise during—the Recess. The Executive claims that “may happen during” actually means “happen to exist,” but that construction erases “may happen during” from the Clause, while contravening the uniform understanding of the framers.

The brief contends that the answer to the third question is also clear. The Executive agrees that Senate breaks “of three days or less ‘during the Session of Congress,’ . . . are effectively de minimis and do not trigger the President’s recess-appointment authority.” Here, however, the Senate convened sessions every three days throughout the supposed recess. It therefore was not in “the Recess of the Senate” under the Executive’s own test. The Executive urges that the Senate’s sessions—at which the Senate could and did conduct official business—were constitutional nullities, but the Senate, not the President, determines the Rules of its Proceedings. And here, it determined that it was in session every three days.

These limitations on the President’s unilateral recess-appointment power accord with the Clause’s limited purpose. The Constitution provides a “general method” of appointment with advice and consent that serves to “check” presidential power. The Recess Appointments Clause supplies an “auxiliary method,” but limits it to making “temporary appointments” in certain circumstances during ‘“the recess of the Senate.’”

Serving alongside the U.S. Chamber's Litigation Center as co-counsel for Noel Canning are Noel Francisco, Roger King, and James Burnham of Jones Day LLP, as well as Gary Lofland of Halverson Northwest Law Group.