Supreme Court Invalidates Obama’s Recess Appointments to National Labor Relations Board

Friday, June 27, 2014
(photo: Jon Elswick, AP)

The U.S. Supreme Court dealt President Barack Obama a significant blow Thursday when it unanimously sided with a Republican challenge to his recess appointments two years ago.


In 2012, Obama used his presidential authority to fill seats on the National Labor Relations Board (NLRB) while the Senate was still technically in session.


Presidents have long used their recess appointment powers to bypass political opposition in the Senate. But in Obama’s case, the moves came during a time when the Senate was in what’s called “pro forma session.” All senators had left town, but technically, the upper house was not in recess—and this fact provided the basis for the successful legal challenge that came down.


In the 9-0 ruling, the court ruled (pdf) Obama’s move was unconstitutional, making the appointments invalid and raising questions about any NLRB actions involving those appointees, such as that against the plaintiff, Noel Canning.


“We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Justice Stephen Breyer wrote. “The Senate met that standard here.”


Obama’s counsel had argued that Republicans were determined to prevent any appointments to the NLRB and the Consumer Financial Protection Bureau to stymie the two agencies’ bureaucratic operations, and that they had used procedural trickery to do so.


The court decision was narrowly tailored to address the 2012 appointments, leaving intact the president’s recess appointment powers as long as they don’t come during a pro-forma session again.

-Noel Brinkerhoff


To Learn More:

National Labor Relations Board v. Noel Canning (U.S. Supreme Court) (pdf)

Supreme Court Deals Blow to Obama on Recess Appointments (by Adam Serwer, MSNBC)

Supreme Court Says Obama's NLRB Recess Appointments Were Unconstitutional (by Brett Logiurato, Business Insider)

Enforcement of Key Labor Law Grinds to a Halt (by Noel Brinkerhoff, AllGov) 


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