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Oral Argument Casts Doubt on Validity of Recess Appointments to the NLRB

The Supreme Court today heard oral argument in Noel Canning v. NLRB.  The Employer, Noel Canning, challenged an opinion by the NLRB and members who had been appointed by the President during what the President deemed a recess.  The issue in the case is whether the U.S. Senate was in recess in January 2012, when President Obama made three recess appointments to the NLRB of Sharon Block, Terry Flynn and Richard Griffin.  At the time, the Senate had been meeting in “pro forma” sessions every three business days, but was not otherwise conducting substantial business.  The DC Circuit held that Presidential recess appointments may only be made when the vacancy arises and the appointment occurs in the intersession recess between two-year sessions of Congress.  See our previous reports on the DC Circuit’s decision here and on a related Third Circuit case here.

In more than 90 minutes of oral argument today, observers have reported that most of the justices expressed concern over the recess appointments.  The Supreme Court could issue a narrow ruling invalidating the appointments because the Senate was not in recess due to holding pro forma sessions every three days.  It is believed that the January appointments are the only occasions when a President has made appointments under this circumstance.  Alternatively, the Supreme Court could affirm the very broad ruling of the DC Circuit and hold that recess appointments are valid only if the vacancy occurs and the appointment is made within the intersession recesses between the 2-year sessions of Congress.  Such a broader ruling could impact many past Presidential recess appointments to the NLRB and other agencies.  Even with the narrower ruling, hundreds of NLRB cases would likely be set aside.

We will continue to watch for the Court’s decision, expected in June.