573 U.S. 513 (2014)
Noel Canning is a Pepsi-Cola distributor that became involved in a labor dispute with a union.1 In 2011 the National Labor Relations Board found that Noel Canning had unlawfully refused to reduce to writing and execute a collective-bargaining agreement.2 The Board ordered the distributor to execute the agreement and to make employees whole for any losses.3
Noel Canning petitioned the Court of Appeals for the District of Columbia Circuit to set the Board's order aside.4 It claimed that three of the five Board members had been invalidly appointed, leaving the Board without a lawful quorum.5 The three members in question were Sharon Block, Richard Griffin, and Terence Flynn.6 In 2011 the President had nominated each of them to the Board, and as of January 2012 their nominations remained pending in the Senate.7
On December 17, 2011, the Senate by unanimous consent adopted a resolution providing that it would hold pro forma sessions every Tuesday and Friday through January 20, 2012, with no business to be transacted.8 On January 4, 2012, between the January 3 and January 6 pro forma sessions, the President invoked the Recess Appointments Clause and appointed all three individuals to the Board.9
Noel Canning argued that the appointments were invalid because they occurred during a three-day adjournment that was not long enough to trigger the Recess Appointments Clause.10 The D.C. Circuit agreed that the appointments fell outside the scope of the Clause, though on different grounds, and set aside the Board's order.11 The Supreme Court granted certiorari to address the validity of the recess appointments.12
Whether the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess of the Senate, including intra-session recesses of sufficient length?13
The Recess Appointments Clause applies to both inter-session and intra-session recesses of substantial length because the text is ambiguous, the purpose of ensuring continued government functioning applies equally to both, and historical practice from the founding era onward confirms that Presidents have made intra-session appointments during substantial breaks.14
Yes. The established facts show that the President appointed Block, Griffin, and Flynn on January 4, 2012, during a break between the Senate's pro forma sessions scheduled within its formal session by the December 17, 2011 resolution.15 The Clause's purpose to permit appointments when the Senate is unavailable supports treating substantial intra-session breaks the same as inter-session recesses.16
The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess of the Senate, including intra-session recesses of sufficient length.17
Related opinions on this issue
Joined by Chief Justice Roberts, Justices Thomas And Alito
Justice Scalia would hold that the Clause applies only to inter-session recesses.18 The constitutional text distinguishes the formal recess between sessions from breaks within a session.19 In the founding era, the terms recess and session had well-understood meanings marking legislative time, with recess referring to the gap between formal sessions.20
The majority's approach creates unadministrable judicial limits without textual foundation.21 It is inconceivable that the Framers would have left the circumstances in which the President could exercise such a significant and potentially dangerous power so utterly indeterminate. Scalia concurs in the judgment but would have invalidated the appointments on broader textual grounds rather than the narrow three-day holding.22
Whether the phrase "vacancies that may happen during the recess of the Senate" applies to vacancies that first come into existence during a recess as well as to vacancies that arise before a recess but continue to exist during it?23
The phrase "vacancies that may happen during the recess of the Senate" applies to both vacancies that first arise during a recess and those that arise earlier but continue to exist during the recess, as the text is ambiguous, the purpose of keeping offices filled supports the broader reading, and historical practice shows Presidents have long filled pre-recess vacancies.24
Yes. The established facts establish that the vacancies filled by Block, Griffin, and Flynn arose before the January 2012 period, as their nominations had been pending in the Senate since 2011.25 The broader construction prevents paralysis of government functions when vacancies persist into a recess, consistent with the facts of two centuries of practice applying the Clause to continuing vacancies.26
The phrase "vacancies that may happen during the recess of the Senate" applies to vacancies that first come into existence during a recess as well as to vacancies that arise before a recess but continue to exist during it.27
Related opinions on this issue
Joined by Chief Justice Roberts, Justices Thomas And Alito
Justice Scalia would limit the Clause to vacancies that arise during the recess itself.28 The plain meaning of happen refers to origination during the recess.29 As the majority concedes, the most natural meaning of happens as applied to a vacancy is that the vacancy happens when it initially occurs.30
The broader reading allows the President to circumvent Senate confirmation routinely.31 If the Clause had allowed the President to fill all pre-existing vacancies during the recess by granting commissions that would last throughout the following session, it would have been impossible to regard it as a mere codicil to the Constitution's principal power-sharing scheme for filling federal offices.32 Scalia would have invalidated the appointments on this independent textual ground.33
Whether the Senate is in session for purposes of the Recess Appointments Clause when it holds pro forma sessions every three days pursuant to a resolution providing that no business will be transacted?34
For purposes of the Recess Appointments Clause, the Senate is in session when it declares itself to be in session, provided that under its own rules it retains the capacity to transact business.35
Yes. The established facts show that the Senate held pro forma sessions on January 3 and January 6, 2012, pursuant to its December 17, 2011 resolution, and Senate rules permitted it to conduct business by unanimous consent, as it actually did on December 23, 2011.36 Because the Senate retained capacity to act, the period between those sessions was a three-day recess too short to trigger the Clause.37
The Senate was in session during its pro forma sessions, so the President's January 4, 2012 appointments occurred during a recess too short to fall within the Recess Appointments Clause.38
Related opinions on this issue
Joined by Chief Justice Roberts, Justices Thomas And Alito
Justice Scalia concurs in the judgment that the appointments were invalid because they occurred during a three-day break.39 Today's Court agrees that the appointments were invalid, but for the far narrower reason that they were made during a 3-day break in the Senate's session.40 He would have invalidated them on the additional and independent grounds that the Clause is limited to inter-session recesses and to vacancies arising during the recess.41
The Court of Appeals correctly held that the appointments here at issue are invalid because they did not meet either condition. Scalia would have reached the same result through a stricter textual analysis of both the recess and vacancy limitations rather than relying solely on the length of the break.42