In a momentous decision, a three-judge panel of the U.S. Court of Appeals for the District of Columbia unanimously held that President Obama lacked the constitutional authority to appoint three members to the National Labor Relations Board (NLRB) while the Senate was on an intrasession break from December 20, 2011 through January 23, 2012.
Under the Supreme Court’s decision in New Process Steel, the NLRB Board must have a quorum of three members to act. On January 4, 2012, while the Senate was in pro forma sessions meeting every three business days, President Obama filled three vacancies on the Board without approval by the Senate. In Noel Canning v. NLRB, petitioner argued, and the court agreed, that the Constitution’s “Recess Appointments Clause” is limited to the “the Recess” period between sessions of the Senate when the Senate is, by definition, not in session. “The Recess” does not include intrasession breaks in the Senate’s business while it is otherwise in a continuing session. The court also held that the President may only make recess appointments to fill vacancies that arise during the intersession recess. This interpretation conflicts with the prior understanding that the President can use the appointment power to fill a vacancy in existence during the Senate recess even though it did not arise at that time.
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