The Supreme Court has ruled that three recess appointments made by President Obama in 2012 to the National Labor Relations Board (NLRB) were done in violation of the Recess Appointments Clause, and are therefore unconstitutional. During a three-day intra-session recess of the Senate in 2012, President Obama made three appointments to vacant NLRB positions. The Court analyzed the constitutionality of the President's decision to circumvent the Senate while making politically strategic recess appointments during this intra-session break. While the Recess Appointments Clause does not clearly specify the proper length which is appropriate for presidential recess appointments, Justice Breyer in a unanimous decision stated that "a recess of more than three days but less than ten days is presumptively too short to fall within the clause." Importantly, the Court left open the door to unusual circumstances which may arise that call for presidential recess appointments in a span of fewer than ten days by emphasizing the word "presumptively" in its holding; however, it viewed no such circumstances in the 2012 NLRB appointments. Generally, the Senate is not in session when it declares that it is not in session, or when it is without the capacity to act under its own rules. During this specific break, the Senate made certain it still had the power to act under its own rules, and gaveled in every three days, making this break too short for the President to make such politically significant recess appointments.
Don't expect this to be the end of the story. There are a number of cases pending before the Board that will have significant impact on employers, for which we anticipate decisions this year. Stay tuned.