Article courtesy of U.S. Chamber Litigation Center
In an historic decision, the U.S. Supreme Court unanimously ruled that President Obama violated the Recess Appointments Clause of the U.S. Constitution in making three appointments to the National Labor Relations Board on January 4, 2012 without the advice and consent of the Senate. In an opinion by Justice Breyer (9-0 on the judgment, 5-4 on the reasoning), the Court held that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess (intrasession or intersession) of sufficient length, and holds that the appointments here are invalid because they occurred during only a three-day recess. This the first time the Supreme Court has ever addressed the meaning of the Recess Appointments Clause, and the 108 pages of opinions exhaustively analyze the text, structure, and history of the Clause. The U.S. Chamber Litigation Center represented Noel Canning, a member of the Chamber, in the Supreme Court, and served as co-counsel to Noel Canning alongside the law firm Jones Day.
The decision provides certainty about the status of hundreds of cases that were unlawfully decided by panels of unconstitutionally appointed members of the Board. The Board will now need to reconsider those cases, and it might also have to reconsider numerous other official acts, such as appointments of Regional Directors and other Board officials, that were taken by unconstitutionally appointed members of the Board.