On December 17, 2011, the U.S. Senate was in session, passed an adjournment order by unanimous consent, and, from December 20, 2011 to January 20, 2012, met every three days in pro forma
sessions. During these sessions, the Senate passed various laws. On January 4, 2012, in a three-day adjournment between pro forma
sessions, President Obama used the Recess Appointments Clause to appoint three individuals to the NLRM without the advice and consent of the Senate.
In September of 2011, an NLRB administrative law judge (ALJ) issued an order against Noel Canning in a dispute between the Washington soft-drink bottler and a union. Noel Canning appealed the ALJ’s decision to the NLRB, and the NLRB, acting through a three-member panel, affirmed that decision. Noel Canning appealed the NLRB’s decision to the D.C. Circuit on statutory and constitutional grounds.
In January 2013, the D.C. Circuit held that: (1) “the Recess” of the Senate, for purposes of the Recess Appointments Clause, is one between enumerated sessions of the Senate; and (2) a vacancy “happens” during the recess only when it first opens during the recess. In April 2013, the NLRB filed a petition for writ of certiorari. On June 24, 2013, the Supreme Court granted the petition. On November 25, 2013, MSLF filed an amicus curiae brief in support of Noel Canning. On January 13, 2014, the Supreme Court held oral argument. On June 26, 2014, the Supreme Court ruled unanimously that President Obama's appointments to the NLRB violated the Recess Appointments Clause and were unconstitutional.