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D.C. Circuit finds “Recess Appointments” Invalid: NLRB Lacked Quorum

Posted in Constitutional Issues in Regulations

The United States Court of Appeals for the District of Columbia Circuit ruled today that the National Labor Relations Board (NLRB) lacked a quorum to act in Noel Canning v. NLRB because three Presidential “recess” appointments were invalid.  The court found that the United States Senate was not in “the” recess contemplated by the United States Constitution’s “recess appointments clause.”  The decision undoes a year of NLRB decisions and will have a wider impact on the operation of the government because President Obama recess appointed also the Director of the Consumer Finance Protection Bureau (CFPB) under the same “recess.”

Statutory Claims First:  The court applied the well-settled doctrine that courts, as Justice Brandeis pointed out in Ashwander, “will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”  Accordingly, the court spend much time disposing of statutory claims before reaching the constitutional donnybrook of the case.

Constitutional Facts:  The Senate gavelled to order its Second Session of the 112th Congress on January 3, 2012 (at “12:01and 32 seconds p.m.”) and promptly (at “12:02 and 13 seconds p.m.”) adjourned until January 6, 2012.  The next day President Obama announced his intention to, and did, “recess appoint” three members to the five-member NLRB, and the Director of the CFPB.  Noel Canning challenged an NRLB order entered by a panel that included two of the three recess appointees.

Constitutional Claims:  Petitioner for review asserted that

  • the NLRB lacked authority to act for want of a quorum because three members of the five-member Board were never validly appointed:  they took office under putative recess appointments which were made when the Senate was not in recess, and
  • the vacancies these three members purportedly filled did not “happen during the Recess of the Senate,” as required for recess appointments by the Constitution.

The relevant provision – United States Constitution, Art. II, § 2, cl. 3 – states:

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.

Turning on the definite article “the”:  The court’s constitutional analysis begins with understanding of terms as they were understood at the time of the Framing, sometimes referred to as the “Fixed-Meaning” canon of construction:

It is this difference between the word choice “recess” and “the Recess” that first draws our attention.  When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution.  District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008).  Then, as now, the word “the” was and is a definite article.  See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing” (emphasis added)).  Unlike “a” or “an,” that definite article suggests specificity.  As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.”  This is not an insignificant distinction.  In the end it makes all the difference.

Even today, the same definite article definition applies.

The court went on to find that “the Recess” referred to the inter-sessional recess between the First and Second Sessions of Congress or at the end of the Second Session.  The Court rejected interpretations offered by the Board and the Department of Justice, concluding that “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”  Whether Congress – or more particularly the Senate – may define its sessions for Constitutional purposes was not answered, but the court found that the pro-forma sessions every three days were not “the Recess” under the recess appointments clause.

The constitutional duty of the court is unambiguous:  “When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.”

The Board must have a quorum to lawfully take action and this was not the first major failure of the quorum requirement.  See New Process Steel, L.P. v. NLRB.  The order before the court was void ab initio – void from the beginning.

Effect:  At bottom, the lack of appointment authority deprives the NLRB of authority to act:  as the recess appointments of three members (a whole quorum) depended on these void recess appointments, all of the actions taken by the NLRB under those appointments is void, not just voidable.  New Process Steel redux; a year of NLRB decisions is lost.

The Department of Justice (DOJ on behalf of the United States and POTUS, and the NLRB, will likely request rehearing and rehearing en banc.  A petition for certiorari is almost certainly ahead and ultimately the United States Supreme Court will need to decide the issue.

Whither the CFPB?  That challenge will be next and the effect could be even more substantial.  The White House may need to answer more such “recess” appointment issues and an even greater effect.