NLRB v. Noel Canning
Citation and Court
573 U.S. 513 (2014) — Supreme Court of the United States
Facts
President Obama made three recess appointments to the National Labor Relations Board in January 2012 while the Senate was holding pro forma sessions every three days. Noel Canning challenged an NLRB order on the ground that the appointees were invalidly appointed because the Senate was not in recess within the meaning of the Recess Appointments Clause.
Issue
Whether the Recess Appointments Clause permits appointments during intrasession recesses (not only the recess between congressional sessions), whether it applies to vacancies that arose before the recess, and whether the Senate was “in recess” during its pro forma sessions.
Holding
The Recess Appointments Clause applies to intrasession recesses and to vacancies that first arose before the recess, but the Senate determines when it is in recess — and the pro forma sessions here were sufficient to prevent the Senate from being “in recess,” making the three appointments invalid.
Rule / Doctrine
Recess appointments are valid during both intersession and intrasession recesses, but only for recesses of sufficient length (generally ten or more days serves as a presumptive minimum); shorter recesses presumptively do not support recess appointments. The Senate controls its own schedule, and if it determines it is in session — even through pro forma sessions — the President cannot override that determination.
Significance
NLRB v. Noel Canning significantly limits the President’s recess appointment power by giving the Senate the ability to block recess appointments through pro forma sessions, a tactic now widely used to prevent end-runs around the confirmation process. It is a major separation-of-powers decision constraining executive unilateralism in appointments.