by Michael W. McConnell, Sidney S. Rosdeitcher
Washington Legal Foundation
January 17, 2014
The National Labor Relations Board (NLRB) ruled that Noel Canning, a soft-drink bottling company in Yakima, Washington, had committed unfair labor practices under federal law. At the time of the NLRB’s ruling, three of its members had been appointed by President Obama under the Recess Appointments Clause. Noel Canning subsequently challenged the NLRB’s ruling on the basis that its membership was constitutionally deficient by failing to satisfy the requirements of the Recess Appointment Clause. The U.S. Court of Appeals for the D.C. Circuit agreed, holding that the President can only make a “recess appointment” when the Senate is out of town in the interval between its annual sessions, and that the only vacancies subject to recess appointments are vacancies that arise during the annual recess. Because the President’s NLRB appointments did not satisfy either of these requirements, the appointments were unconstitutional and the NLRB lacked a quorum when it issued its ruling against Noel Canning.