We've posted many times about the D.C. Circuit's Noel Canning decision,
which held that three putative recess appointments made by President
Obama to the National Labor Relations Board were, in fact, not proper recess
appointments and were thus invalid. Go, for instance, here, here, and here.
Last week, the Congressional Research Service issued a report entitled The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications. The report reviews the recess appointment clause and how earlier analyses of the clause from the Second, Ninth, and Eleventh Circuits compare to the analysis in Noel Canning. Perhaps most interesting is the report's take on the practical implications of the D.C. Circuit's ruling if it were to become the law of the land. Here's an excerpt of that section:
Although the D.C. Circuit’s actual order in Noel Canning directly implicates only one specific action, against one specific party, within one specific circuit, the court’s interpretation of the President’s recess appointment authority could have a substantial impact on the future division of power between the President and Congress in the filling of vacancies. If affirmed by the Supreme Court, the likely effect of the reasoning adopted in Noel Canning would be a shift toward increased Senate control over the appointment of government officials and a decrease in the frequency of presidential recess appointments. Most prominently, the President would no longer be permitted to make intrasession recess appointments. Since 1981, 329 appointments—more than half of all recess appointments made during that period—have been made during intrasession recesses of the Senate. In addition, the President would no longer be permitted to exercise his recess appointment authority to fill vacancies that arose while the Senate was in session, or that arose during a different intersession recess. Although CRS has not been able to determine the precise number of appointments that would have fallen into this category, it would appear that few of the intersession recess appointments made since 1981 filled vacancies that arose during the intersession recess in which the appointment was made. Vacancies in positions requiring Senate confirmation that no longer qualify for a recess appointment under Noel Canning would need to be filled through the general process of presidential nomination and Senate confirmation. Thus, by limiting both the periods in which a President may make recess appointments, and the vacancies that may be filled by such appointments, the decision likely would strengthen the Senate’s “Advice and Consent” role, while restricting the President’s authority to make unilateral appointments.
And here is the report's summary:
Under the Appointments Clause, the President is empowered to nominate and appoint principal
officers of the United States, but only with the advice and consent of the Senate. In addition to
this general appointment authority, the Recess Appointments Clause permits the President to
make temporary appointments, without Senate approval, during periods in which the Senate is not
in session. On January 4, 2012, while the Senate was holding periodic “pro forma” sessions,
President Obama invoked his recess appointment power and unilaterally appointed Richard
Cordray as Director of the Consumer Financial Protection Bureau (CFPB) and Terrence F. Flynn,
Sharon Block, and Richard F. Griffin Jr. as Members of the National Labor Relations Board
(NLRB).
The President’s recess appointments were ultimately challenged by parties affected by actions
taken by the appointed officials, and on January 25, 2013, the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) became the first court to evaluate the merits of the
President’s appointments. In a broad decision entitled Noel Canning v. National Labor Relations
Board, the court invalidated the appointment of all three NLRB Board Members. In reaching its
decision, the D.C. Circuit concluded that under the Recess Appointments Clause, the President
may only make recess appointments during a formal intersession recess (a recess between the end
of one session of Congress and the start of another), and only to fill those vacancies that arose
during the intersession recess in which the appointment was made.
Although the D.C. Circuit’s actual order in Noel Canning directly applies only to the NLRB’s
authority to undertake the single action at issue in the case, the court’s interpretation of the
President’s recess appointment authority could have a substantial impact on the future division of
power between the President and Congress in the filling of vacancies. If affirmed by the Supreme
Court, the likely effect of the reasoning adopted in Noel Canning would be a shift toward
increased Senate control over the appointment of government officials and a decrease in the
frequency of presidential recess appointments.
This report begins with a general legal overview of the Recess Appointments Clause and a
discussion of applicable case law that existed prior to the D.C. Circuit’s decision in Noel
Canning. The report then analyzes the Noel Canning opinion and evaluates the impact the case
could have on the roles of the President and Congress in the appointments context. A companion
CRS report, Practical Implications of Noel Canning on the NLRB and CFPB, provides a detailed
discussion of the impact the Noel Canning decision may have on the functioning of the NLRB
and the CFPB.
