National Labor Relations Board v. Noel Canning

Supreme Court of the United States · 2014 · Constitutional Law

134 S. Ct. 2550 (2014)

Updated July 29, 2026

Constitutional LawSeparation of PowersAppointmentsRecess Appointments ClauseArticle IISenate advice and consentintra-session recessinter-session recess

Facts

The President nominated Sharon Block, Richard Griffin, and Terence Flynn to the NLRB, but their nominations were pending in the Senate in January 2012. The Senate had adopted a resolution providing for pro forma sessions every Tuesday and Friday from December 20, 2011, through January 20, 2012, with no business to be transacted, and the President appointed the three members on January 4, 2012, between the January 3 and January 6 pro forma sessions. Noel Canning later challenged an NLRB order against it, arguing the Board lacked the quorum required to act because those appointments were invalid. The legal dispute turned on whether the Recess Appointments Clause covered the type and length of recess involved, whether it covered preexisting vacancies, and whether the pro forma sessions counted as actual sessions.

Issue

Does the Recess Appointments Clause authorize the President to make appointments during intra-session recesses as well as inter-session recesses, to fill vacancies that already existed before the recess began, and during a period when the Senate was holding pro forma sessions every three days? More specifically, were the January 4, 2012 NLRB appointments valid given the Senate's pro forma sessions and the brief break between them?

Rule

The Recess Appointments Clause empowers the President to fill any existing vacancy during any Senate recess, whether inter-session or intra-session, so long as the recess is of sufficient length. A recess of three days or less is too short to trigger the power, and a recess of more than three days but less than ten days is presumptively too short absent very unusual circumstances. For purposes of the Clause, the Senate is in session when it says it is, provided that under its own rules it retains the capacity to transact Senate business.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Senate adjourns for 14 days in August during the middle of a formal session, with no pro forma meetings scheduled. A vacancy on the board of the fictional Great Plains Trade Commission arose in May and remains unfilled. The President appoints Dana Mercer during the August break without Senate confirmation.

Is Dana Mercer’s appointment most likely valid under the Recess Appointments Clause?

Explanation. The majority held that the Recess Appointments Clause covers both inter-session and intra-session recesses, so long as the recess is of sufficient length, and that it applies to vacancies that continue into the recess even if they arose earlier. A 14-day intra-session break is long enough to qualify absent some other defect. The 30-day point appears in a pay statute discussed by the Court, not as a constitutional limit.