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Archived: Limited and Ethical Government Legal Cases

Since its creation in 1977, MSLF has been one of the Nation's leading legal centers fighting to ensure that the federal government remains a limited government and a government of laws and not men and women. MSLF recognizes that the Constitution was written, not to protect the various units or levels of government, but to preserve the liberty of the American people. MSLF is committed to ensuring that they continue to have that freedom and opportunity.

National Labor Relations Board v. Noel Canning

Legal Question:

1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate?
2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess?
3. Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions?

Plaintiff:

National Labor Relations Board

Defendant:

Noel Canning, a division of the Noel Corporation

Amicus Curiae:

Mountain States Legal Foundation

Court:

Supreme Court of the United States
None.
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.

No Status Updates
  • President Obama’s Recess Appointments Are Unconstitutional

    Jun 26, 2014
    The Supreme Court of the United States today ruled unanimously, consistent with a brief filed by a nonprofit, public interest legal foundation with decades of experience addressing constitutional issues, that President Obama’s appointments to the National Labor Relations Board (NLRB) violated the Recess Appointments Clause and were unconstitutional.
  • President Obama’s Recess Appointments Unconstitutional

    Nov 25, 2013
    A nonprofit, public interest legal foundation with decades of experience addressing constitutional issues today urged the Supreme Court of the United States to upheld a decision by the U.S. Court of Appeals for the District of Columbia that President Obama violated the Recess Appointments Clause in appointments to the National Labor Relations Board (NLRB).


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