The Court of Appeals for the D.C. Circuit, which has jurisdiction to review Cases arising from decision involving federal agencies, struck down three recess appointments President Obama made to the National Labor Relations Board (NLRB) in January 2012.
The case arose following a routine review of the NLRB. The Petitioner, Noel Canning, challenged the NLRB’s authority to render a verdict. He argued that a quorum, at least three of a five-member Board, were required to act, and because three of the five members were appointed unconstitutionally, the decision is null and void. The Court of Appeals concurred.
At the heart of the decision is Article II Section 2 of the Constitution:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The 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 hinged on whether President Obama’s appointment did, in fact, occur during the recess of the Senate, and what is the meaning of “recess” for constitutional interpretation purposes.
The Court of Appeals rejected the Department of Justice’s Office of Legal Counsel’s interpretation of “the Recess” which grants the President the discretion to determine when the Senate is in recess. Granting the President such discretion flies completely in the face of checks and balances and would “eviscerate the Constitution’s separation of powers.” The Court of Appeals also rejected an interpretation of “the Recess” as an adjournment lasting more than three days.
The Court of Appeals held that “the Recess” is limited to intersession recession. Congress began a new session on January 3, 2012, while the President made his three appointments to the NLRB on January 4, 2012. As a result, his three appointments were invalid, and a quorum was lacking to render a binding decision.