NLRB Decision Invalidated Based on Constitutionality of Board Appointments

On Friday, January 25, 2013, the United States Court of Appeals for the District of Columbia, in Canning v. NLRB, held that the recess appointments of three members to the NLRB in January 2012 were invalid and accordingly, the Board lacked a valid quorum to support its order. The court provided a lengthy analysis of the history and use of the Recess Appointments Clause to conclude that President Obama’s January 4, 2012 appointments of Sharon Block, Terence Flynn, and Richard Griffin to the NLRB were invalid under the Recess Appointments Clause of the Constitution because they occurred during an intrasession adjournment of the Senate and not the intersession recess. Although the court could have ended its analysis there, it also provided a lengthy analysis on a president’s power to fill a vacancy that was not created during the intersession recess.    

 The decision is in conflict with the Eleventh Circuit’s 2004 ruling in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), which held that “the Recess” in the Recess Appointment Clause included intrasession recesses.  The court in Canning disagreed with Evans finding that the Eleventh Circuit’s ruling was based on an incomplete analysis of the Recess Appointments Clause.  The court specifically relied upon the Framers’ use of the term “the Recess” as opposed to “a recess”, stating: “This is not an insignificant distinction.  In the end it makes all the difference.

This decision has the potential to have far-reaching effects.  While the Canning opinion is only precedential in the D.C. Circuit, and thus only those NLRB decisions are currently effected, this issue will inevitably be appealed.  Should other courts adopt the reasoning in Canning there is the potential that all decisions issued by the NLRB after January 4, 2012, could be invalidated.

In a January 25 press conference, White House Press Secretary Jay Carney called the ruling “novel and unprecedented,” adding that the administration “respectfully but strongly” disagrees with the decision.  NLRB Chairman Mark Gaston Pearce indicated that the NLRB “believes that the President’s position in the matter will ultimately be upheld.”  House Education and Workforce Committee Chairman John Kline (R-Minn.) has called for the NLRB to “cease all activity until qualified nominees have been constitutionally appointed to the board.”