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The Future of Recess Appointments After the Decision of the D.C. Circuit in Noel Canning v. NLRB

President Obama outraged congressional Republicans in early 2012 when he used his recess appointment power to name the first Director of the Consumer Financial Protection Bureau (CFPB) and three new members to the National Labor Relations Board (NLRB). The President made the appointments despite pro forma Senate sessions specifically designed to prevent him from filling the positions. Partisans from both sides of the aisle immediately jumped in. Were these intrasession recess appointments an example of the President “arrogantly circumvent[ing] the American people . . . . [in] a sharp departure from a longstanding precedent”? Or were the pro forma sessions nothing more than a “gimmick” created to threaten “the President’s constitutional authority to make appointments to keep the government running”?

Barely a year later, the D.C. Circuit Court of Appeals waded into the debate when it decided Noel Canning v. NLRB. In a “bombshell” ruling that has been described as “surprisingly broad,” the panel unanimously declared the President’s appointments to the NLRB unconstitutional. Of the three other federal appellate courts to consider the scope of the recess appointment power, all have reached conclusions wholly opposite to that of Noel Canning. The reasoning of the D.C. Circuit’s decision would have invalidated the majority of recess appointments made by U.S. presidents from Ronald Reagan forward.

The logic of Noel Canning, which draws heavily on a formalistic reading of the original meaning and purpose of the power, significantly narrows the scope of the Recess Appointments Clause in a manner that could “virtually eliminate the recess appointment power for all future presidents at a time when it has become increasingly difficult to win Senate confirmation for nominees.” Previous courts placed greater value on the functional, government‐enabling benefits of an expansive reading of the clause. Both interpretations are reasonable, but they also reflect the differing value judgments of the deciding courts.

Noel Canning created a clear circuit split on a critical constitutional issue, and the Supreme Court recently granted certiorari. Now the Court must balance the same values and make its own determination as to the future of recess appointments. The outcome of Noel Canning is incredibly difficult to predict. The Court could resolve the case in a number of different ways, and the various fundamental issues at stake cannot be divided easily along ideological lines.

Part I of this Note explores how courts have interpreted the Recess Appointments Clause in the past. Part II recounts the underlying facts of Noel Canning and outlines the arguments of the D.C. Circuit’s majority and concurring opinions. Part III considers the implications of the D.C. Circuit’s ruling for the NLRB and CFPB, and discusses the Supreme Court’s decision to grant certiorari in this case.