The U.S. Supreme Court ruled during 2010 that the National Labor Relations Board (NLRB or Board) cannot act without a quorum of three members. New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). In a decision issued on January 25, the United States Court of Appeals for the District of Columbia Circuit has taken the issue one step further, and ruled that the purported appointments of the last three members of the Board were invalid under the Recess Appointments Clause of the U.S. Constitution. Noel Canning v. NLRB.

The U.S. Constitution provides that the members of the Board are “Officers of the United States” within the meaning of the Appointments Clause of the Constitution, which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… particular officers of the United States…” It was undisputed that the purported appointments of the three members were not made by and with the advice and consent of the Senate, however but the so-called “Recess Appointments Clause” of the Constitution provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the End of their next Session.” The case thus turned on whether the Senate was in recess at the time of the period of appointments, plus the issue of whether the vacancies happened during the Recess of the Senate.

 The court finds that the NLRB’s interpretation of “the Recess” would defeat the purpose of the Framers of the Constitution and the careful separation of power structure reflected in the Appointments Clause, and that such appointment structure used the term “Recess” to refer only to the Recess between Sessions, when the Senate simply cannot provide advice and consent. The court finds that the appointment structure would have been turned upside down if the President could make appointments any time the Senate so much as broke for lunch.

The court further found the Appointments invalid as the vacancies did not “happen” during “the Recess.” That is, it is insufficient that the qualifying vacancy “exists” during the recess; it must actually “arise” during the recess. Thus, the President may only make recess appointments to fill vacancies that arise during the recess. Because none of the three appointments were valid, the NLRB lacked a quorum and the NLRB decision was vacated.

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