Two weeks ago, on January 25th, 2013, a panel of the United States Circuit Court of Appeals for the D.C. Circuit, consisting of three judges appointed by Republican presidents, unanimously invalidated a decision by the National Labor Relations Board. In Noel Canning v. N.L.R.B., the D.C. Circuit held that the Board did not have a sufficient number of members, or quorum, to make binding decisions because three of the five Board members were appointed through an improper use of the Constitution's Recess Appointments Clause. This decision calls into question many of the NLRB's actions since the three recess appointments were made last year.
Although the decision by the D.C. Circuit was specific to the NLRB, the rationale for the decision, if applied to other recess appointments, could result in chaos throughout the federal government. Several commentators have noted that decisions issued by the Consumer Financial Protection Bureau over the last year could also be subject to invalidation, since Director Richard Cordray was recess appointed at the same time as the NLRB appointees.
Norman Ornstein of the American Enterprise Institute lambasted the D.C. Circuit's ruling as "a remarkable exercise of judicial overreach and arrogance." Ornstein highlighted the difference between President Obama's use of recess appointments from that of his predecessors:
I am not a fan of excessive use of recess appointments, especially when they are made to avoid a major controversy or the simple inconvenience of a possible negative vote in the Senate. But those kinds of recess appointments were made more frequently in the Reagan, Clinton and George W. Bush years . . . . Our current president has issued few recess appointments and did so only when faced with unprecedented filibusters against qualified and widely admired nominees who were opposed because Republicans wanted to emasculate their agencies in violation of common practice and the fiduciary duty of lawmakers to allow laws to be administered and implemented.
A report by the Congressional Research Service released earlier this week found that since January 1981, hundreds of recess appointments by Presidents Ronald Reagan (232), George H. W. Bush (78), Bill Clinton (139), George W. Bush (171), and Barack Obama (32) could have been deemed improper under Noel Canning's reasoning. In total, the report found that least 652 recess appointments were either made outside the narrow window the Court defined for making recess appointments or were made in a recess in which the vacancy did not occur—neither of which would be allowed under the judges' ruling.
In 2004, President George W. Bush made recess appointments of two controversial judges to federal circuit courts: Charles Pickering to the Fifth Circuit and William Pryor to the Eleventh Circuit. Since these recess appointments occurred long after the Senate session in which the vacancy occurred, at least two dozen judicial opinions authored by these judges could be vulnerable to invalidation were Noel Canning applied.
The NLRB can still request a rehearing en banc from the D.C. Circuit or, more likely, appeal to the Supreme Court. If that's the case, the Court is likely to consider the question, not only because of the implication for the separation of powers, but because the Eleventh Circuit interpreted the Recess Appointments Clause differently in a 2005 case. In addition, challenges to President Obama's recess NLRB appointments are still pending in other circuits. The NLRB's Chairman, Mark Gaston Pearce, has remarked that the Board will continue its work while the litigation continues. But until we have a final decision on the matter, a pall has been cast upon all recess appointments and the decisions made by such appointees.