Administrative Procedure -- 2014

NLRB v. Noel Canning   (U.S. Supreme Court)

Defining the President's recess-appointment power

This case presents the fundamental question whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate. A second question involves when a vacancy occurs that may be filled by a recess appointment -- must the vacancy first arise during a recess, or may it be filled if it exists at any time during a recess? Closely related to these questions is whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

These issues are critical to the validity of dozens of recess appointments that have been made by recent presidents. This case involves appointees to the National Labor Relations Board.

On May 23, 2013, the Coalition for a Democratic Workplace, of which the NAM is a member, filed an amicus brief urging the Court to settle the rules for recess appointments. The Court agreed to hear the case, and on June 26, 2014, invalidated the appointments. It held that the Recess Appointment Clause only empowers the President to fill existing vacancies during a recess of sufficient length. Furthermore, the recess appointment power applies to both pre-existing vacancies that continue to exist during the recess period and vacancies that occur during a recess period. Several hundred cases decided by the improperly appointed NLRB were affected and could be revisited.

Related Documents:
CDW amicus brief in support of certiorari  (May 23, 2013)


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