On Friday, the United States Circuit Court for the D.C. Circuit issued its ruling in Canning v. NLRB. The decision can only be considered a blow to the President’s agenda.
The case involved the legality of certain appointments the President made to the NLRB while the President claimed the Senate was in recess. Article II, Section 2 of the Constitution provides, in pertinent part,
The President shall have power to fill up all vacancies [that would otherwise need Senate confirmation] that may happen during the recess of the Senate…[emphasis supplied]
The facts of the case are very straightforward. On January 4, 2012 the President appointed 3 people to fill vacancies on the NLRB.
At the time of the President’s purported recess appointments of the three Board members, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. 157 Cong. Rec. S8,783–84 (daily ed. Dec. 17, 2011). [see page 14]
In fact, during one of those pro forma sessions, on January 3, 2012, the Senate convened the Second Session of the 112th Congress.
The Circuit Court held that all three NLRB appointments were unconstitutional for two separate reasons. First the court found that the Senate was not in recess at the time of the appointments. The court determined that the words “the recess” in the Constitution meant only that period of time between sessions of the Senate, not anytime the Senate was not present on the Senate floor. In other words, appointments could be made, for example, during the recess between the first session of the 112th Congress and the second session, or the second session of the 112th Congress and the first session of the 113th Congress. In this case, because of the proforma sessions, there never was a recess.
And second, the court found that recess appointements can only be made if the vacancy happens during the recess. The fact that a vacancy may exist during a recess does not give the President the power to make an appointment. None of the vacancies on the NLRB in question happened during any recess.
Without these three members, the NLRB did not have a quorum, and thus the ruling made by it in the Canning case was void.
During the period of time between January 4, 2012 and Friday’s opinion, the NLRB made over 200 decisions, and, as there was no quorum, those decisions are now called into question.
What is even more interesting is that on the same day the President made his “recess” appointments to the NLRB, he also “recess” appointed Richard Cordray as Director of Dodd/Frank’s Consumer Financial Protection Bureau. Since then, that bureau has issued thousands of pages of regulations, which, by law, it cannot issue without a Director.
One could conclude that those regulations are void as well.