Nat'l Labor Relations Bd. v. Canning

• Decision Date: 26 June 2014
• Docket Number: No. 12–1281.,12–1281.
• Citation: 573 U.S. 513,134 S.Ct. 2550,189 L.Ed.2d 538
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner v. NOEL CANNING, et al.
• Court: U.S. Supreme Court

573 U.S. 513

134 S.Ct. 2550

189 L.Ed.2d 538

NATIONAL LABOR RELATIONS BOARD, Petitioner

v.NOEL CANNING, et al.

No. 12–1281.

Supreme Court of the United States

Argued Jan. 13, 2014.

Decided June 26, 2014.

Donald B. Verrilli, Jr., Solicitor General, for Petitioner.

Noel J. Francisco, Washington, DC, for Respondents.

Miguel Estrada, for Senate Republican Leader Mitch McConnell, et al. as amici curiae, by special leave of the Court, supporting the respondents.

Laurence Gold, of counsel, Bradley T. Raymond, James B. Coppess, Counsel of Record, Washington, DC, for Petitioner.

Gary E. Lofland, Halverson Northwest Law Group, Yakima, WA, Lily Fu Claffee, Rachel L. Brand, Steven P. Lehotsky, National Chamber Litigation Center, Inc., Noel J. Francisco, Counsel of Record, G. Roger King, James M. Burnham, Washington, DC, for Respondent Noel Canning.

Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Deputy General Counsel, John H. Ferguson, Margery E. Lieber, Associate General Counsels, Linda Dreeben, Deputy Associate General Counsel, National Labor Relations Board, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Beth S. Brinkmann, Deputy Assistant Attorney General, Curtis E. Gannon, Assistant to the Solicitor General, Douglas N. Letter, Scott R. McIntosh, Melissa N. Patterson, Benjamin M. Shultz, Attorneys, Department of Justice, Washington, DC, for Petitioner.

Justice BREYER delivered the opinion of the Court.

Ordinarily the President must obtain "the Advice and Consent of the Senate" before appointing an "Office[r] of the United States." U.S. Const., Art. II, § 2, cl. 2. But the Recess Appointments Clause creates an exception. It gives the President alone the 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." Art. II, § 2, cl. 3. We here consider three questions about the application of this Clause.

The first concerns the scope of the words "recess of the Senate." Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? We conclude that the Clause applies to both kinds of recess.

The second question concerns the scope of the words "vacancies that may happen." Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess? We conclude that the Clause applies to both kinds of vacancy.

The third question concerns calculation of the length of a "recess." The President made the appointments here at issue on January 4, 2012. At that time the Senate was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by "pro forma session[s]," with "no business ... transacted," every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess? We conclude that we cannot ignore these pro forma sessions.

Our answer to the third question means that, when the appointments before us took place, the Senate was in the midst of a 3–day recess. Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue.

I

The case before us arises out of a labor dispute. The National Labor Relations Board (NLRB) found that a Pepsi–Cola distributor, Noel Canning, had unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union. The Board ordered the distributor to execute the agreement and to make employees whole for any losses. Noel Canning, 358 N.L.R.B. No. 4 (2012).

The Pepsi–Cola distributor subsequently asked the Court of Appeals for the District of Columbia Circuit to set the Board's order aside. It claimed that three of the five Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act. See 29 U.S.C. § 160(f) (providing for judicial review); § 153(a) (providing for a 5–member Board); § 153(b) (providing for a 3–member quorum); New Process Steel, L.P. v. NLRB, 560 U.S. 674, 687–688, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010) (in the absence of a lawfully appointed quorum, the Board cannot exercise its powers).

The three members in question were Sharon Block, Richard Griffin, and Terence Flynn. In 2011 the President had nominated each of them to the Board. As of January 2012, Flynn's nomination had been pending in the Senate awaiting confirmation for approximately a year. The nominations of each of the other two had been pending for a few weeks. On January 4, 2012, the President, invoking the Recess Appointments Clause, appointed all three to the Board.

The distributor argued that the Recess Appointments Clause did not authorize those appointments. It pointed out that on December 17, 2011, the Senate, by unanimous consent, had adopted a resolution providing that it would take a series of brief recesses beginning the following day. See 2011 S.J. 923. Pursuant to that resolution, the Senate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. Ibid. ; 158 Cong. Rec. S1–S11 (Jan. 3–20, 2012). The President's January 4 appointments were made between the January 3 and January 6 pro forma sessions. In the distributor's view, each pro forma session terminated the immediately preceding recess. Accordingly, the appointments were made during a 3–day adjournment, which is not long enough to trigger the Recess Appointments Clause.

The Court of Appeals agreed that the appointments fell outside the scope of the Clause. But the court set forth different reasons. It held that the Clause's words "the recess of the Senate" do not include recesses that occur within a formal session of Congress, i.e., intra-session recesses. Rather those words apply only to recesses between those formal sessions, i.e., inter- session recesses. Since the second session of the 112th Congress began on January 3, 2012, the day before the President's appointments, those appointments occurred during an intra-session recess, and the appointments consequently fell outside the scope of the Clause. 705 F.3d 490, 499–507 (C.A.D.C.2013).

The Court of Appeals added that, in any event, the phrase "vacancies that may happen during the recess" applies only to vacancies that come into existence during a recess. Id., at 507–512. The vacancies that Members Block, Griffin, and Flynn were appointed to fill had arisen before the beginning of the recess during which they were appointed. For this reason too the President's appointments were invalid. And, because the Board lacked a quorum of validly appointed members when it issued its order, the order was invalid. 29 U.S.C. § 153(b) ; New Process Steel, supra .

We granted the Solicitor General's petition for certiorari. We asked the parties to address not only the Court of Appeals' interpretation of the Clause but also the distributor's initial argument, namely, "[w]hether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions." 570 U.S. ––––, 133 S.Ct. 2861, 186 L.Ed.2d 908 (2013).

We shall answer all three questions presented. We recognize that the President has nominated others to fill the positions once occupied by Members Block, Griffin, and Flynn, and that the Senate has confirmed these successors. But, as the parties recognize, the fact that the Board now unquestionably has a quorum does not moot the controversy about the validity of the previously entered Board order. And there are pending before us petitions from decisions in other cases involving challenges to the appointment of Board Member Craig Becker. The President appointed Member Becker during an intra-session recess that was not punctuated by pro forma sessions, and the vacancy Becker filled had come into existence prior to the recess. See Congressional Research Service, H. Hogue, M. Carey, M. Greene, & M. Bearden, The Noel Canning Decision and Recess Appointments Made from 1981–2013, p. 28 (Feb. 4, 2013) (hereinafter The Noel Canning Decision); NLRB, Members of the NLRB since 1935, online at http://www.nlrb.gov/who–we–are/board/members–nlrb–1935 (all Internet materials as visited June 24, 2014, and available in Clerk of Court's case file). Other cases involving similar challenges are also pending in the Courts of Appeals. E.g., NLRB v. New Vista Nursing & Rehabilitation, No. 11–3440 etc. (C.A.3). Thus, we believe it is important to answer all three questions that this case presents.

II

Before turning to the specific questions presented, we shall mention two background considerations that we find relevant to all three. First, the Recess Appointments Clause sets forth a subsidiary, not a primary, method for appointing officers of the United States . The immediately preceding Clause— Article II, Section 2, Clause 2 —provides the primary method of appointment. It says that the President "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" (emphasis added).

The Federalist Papers make clear that the Founders intended this method of appointment, requiring Senate approval, to be the norm (at least for principal officers). Alexander Hamilton wrote that the Constitution vests the power of nomination in the President alone because "one man of discernment is better...