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One to Keep an Eye On: National Labor Relations Board v. Noel Canning, United States Supreme Court


As with many employment and labor law related cases that are being litigated around the country, there are always a few that stand out.  This is one to keep an eye on.


Facts:  As of August 2010, the National Labor Relations Board had five members, the maximum number allowed.  On August 27, 2010, one of the five year terms of a Board member expired and President Obama submitted a nomination to the Senate to fill that spot.  A year later, on August 27, 2011, another Board member's term expired, leaving the NLRB with only three members, the minimum needed for a quorum.  President Obama submitted a nomination for that spot.  One of the three remaining members of the Board,Craig Becker, had been appointed during a recess of the Senate in 2010. Because the Recess Appointments Clause provides that the term of a recess appointee "shall expire at the End of [the Senate's] next Session," and Becker's recess appointment had been made during the second session of the 111th Congress, it was understood that his commission would expire at the end of the first session of the 112th Congress.  The first session of the 112th Congress ended at noon on January 3, 2012, when the second session began by operation of the Twentieth Amendment.  At that time, Becker's seat became vacant and the Board ceased to have a quorum because the Senate had not acted on any of the nominations to the three Board spots.  

The Senate had provided that it would reconvene for pro forma sessions three times between December 17 and the end of the session on January 3.  As well, the Senate provided it would reconvene for pro forma sessions on five specified dates between January 6 and January 20 and that from January 3 through January 23, 2012, "no business was to be conducted."  The Senate was to resume business on January 23.  In an order, the Senate referred to its impending absence as a "recess."  As a result of the Senate's actions at this time, President Obama determined the Senate was in recess and on January 4, 2012, appointed three new Board members to fill the open spots. The present case involves a final order issued by the Board shortly after President Obama made the January 2012 recess appointments. 

The Main Issues:  (1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a  Senate session, or is instead limited to recesses that occur between enumerated sessions of the Senate; (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and (3) whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions. 

Lower Court Opinion:  http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf 

Current Status:  On January 13, 2014, the United States Supreme Court heard oral arguments on the case.

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