NLRB v. Noel Canning, Recess Appointments Found Invalid
The Supreme Court issued its opinion in the Noel Canning case in late June. The Court found that three recess appointments made by President Obama during 2011 were ineffective because the President lacked the power to make the appointments. This is the first Supreme Court case interpreting the Recess Appointments Clause of the Constitution. In years past, there have been other executive branch appointments under the Clause.
The NLRB is comprised of five individuals, thus the invalidation of three of its members means that the Board did not have a sufficient quorum to act. The Court considered several aspects of how recesses occur and what authority exists under the Clause.
This decision raises a question involving the actions taken by the NLRB. Between early January 2012 and early August 2013, the time impacted by the decision, the NLRB issued hundreds of decisions and appointed several directors. The full extent of this opinion on the decisions previously rendered is yet to be seen, as many will be back before the NLRB for reconsideration.