Alert February 05, 2013

Federal Circuit Court of Appeals Invalidates NLRB Recess Appointments

The United States Court of Appeals for the District of Columbia Circuit ruled that the appointment of three National Labor Relations Board members was unconstitutional. The petitioner appealed a board decision on the ground that, because the members’ appointments were unconstitutional, the NLRB did not have a quorum, thus making the decision invalid. The Court addressed the question of whether the recess appointments were in fact "recess" appointments, within the meaning of Article II, Section 2, Clause 3 of the Constitution, which states that "[t]he President shall have 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." Focusing on the terms "the Recess" and "happen," the Court held that the appointments were invalid.

In reaching its decision, the Court rejected the NLRB's argument that the term "the Recess" applied to intercession recesses. Relying on the generally accepted notion "that ‘Session’ refers to the usually two or sometimes three sessions per Congress," and that "the" is a definite article suggesting specificity, the Court held that "the Recess should be taken to mean only times when the Senate is not in one of those sessions." In support of its holding, the Court cited to the meaning of "recess" at the time the Constitution was drafted, as well as that for 80 years after the Constitution’s ratification, no President relied upon the clause to make an intercession recess appointment. Notably, the Court refused to adopt the Eleventh Circuit’s opinion in Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004), holding that "the Recess" includes intercession recesses. The Court undertook a similar analysis in reaching its conclusion that the NLRB vacancies did not "happen" during a recess.

The Court's opinion may have implications for the CFPB and Director Richard Cordray, who was a recess appointment, and whose appointment has also been challenged on similar constitutional grounds (see June 26, 2012 Alert).