Those who have followed the National Labor Relations Board (“NLRB”) over the past few years may be aware that there was a period of time when the majority of the 5-member Board consisted of “recess appointments” by President Obama. In other words, because Washington gridlock resulted in the President being unable to obtain Senate approval of his appointments to the NLRB, the Board lacked a quorum and was unable to operate. President Obama’s solution was to appoint members during a Senate recess so that the Board would have enough members to resume performing its duties. Noel Canning challenged the appointments when it appealed a decision of the Board to the U.S. Supreme Court, and on June 26 the Court agreed that the Board lacked authority to act because the President lacked authority to make the recess appointments.
The 108-page decision is a complex one, setting some ground rules for when a recess appointment can and can’t be made by the President. But the immediate importance of the decision is that it establishes that the recess appointments of members of the NLRB were not authorized by the U.S. Constitution. Arguably, all of the decisions issued by the NLRB, during the time a majority of its members received recess appointments, can now be disregarded. (The individual decisions would have to each be separately challenged to be voided, but the effect of the Noel Canning decision is that the NLRB’s decisions will each likely be disregarded even if they are not separately challenged and formally voided.) Even though the current Board consists of members who have been been properly appointed by the President and approved by the Senate, the legacy of the recess appointments is that there are decisions “on the books” that likely cannot be relied on for guidance or precedential value. But, the uncertainty that surrounded those decisions is now resolved.
Another important result of the Noel Canning decision is that all other recess appointments made by President Obama – of which there are many – are now also voidable unless they satisfy criteria set forth in the Court’s lengthy decision. Since presidents of both parties have a history of making recess appointments, those who cheer the Noel Canning decision today may lament the decision when their party is in power in the future.