NLRB v. Noel Canning

Supreme Court of the United States · 2014 · Labor Law

Reporter Citation Pending

Updated August 1, 2026

Labor Lawrecess appointmentsRecess Appointments ClauseArticle IIadvice and consentintra-session recessinter-session recesspre-recess vacancies

Facts

The President nominated Sharon Block, Richard Griffin, and Terence Flynn to the NLRB, and 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, with no business to be transacted, through January 20, 2012. On January 4, 2012, between the January 3 and January 6 pro forma sessions, the President invoked the Recess Appointments Clause to appoint all three to the Board. Noel Canning argued those appointments were invalid, which would leave the Board without the quorum necessary to act.

Issue

Does the Recess Appointments Clause permit the President to make appointments during an intra-session recess, to fill vacancies that arose before the recess, and during a period when the Senate is holding pro forma sessions every three days? More specifically, were the January 4, 2012 NLRB appointments valid when made between pro forma sessions separated by only three days?

Rule

The Recess Appointments Clause empowers the President to fill any existing vacancy during either an inter-session or intra-session recess of sufficient length. The phrase "the Recess of the Senate" includes both inter-session and intra-session recesses, and the phrase "vacancies that may happen during the Recess" includes vacancies that arose before the recess but continue to exist during it. For purposes of the Clause, the Senate is in session when it says it is, so long as under its own rules it retains the capacity to transact Senate business; a three-day recess is too short to trigger the recess-appointment power, and a recess of more than three but less than ten days is presumptively too short absent a very unusual circumstance.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

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

In August, the Senate pauses for 14 days in the middle of its annual session, with no pro forma meetings scheduled during that period. A seat on the Federal Trade Licensing Commission had become vacant in June and remains unfilled. The President appoints Lena Ortiz to that seat on day 6 of the August break.

Is the appointment most likely valid under the governing recess-appointments doctrine?

Explanation. The controlling rule is that the Recess Appointments Clause applies to both inter-session and intra-session recesses of sufficient length, and it may be used to fill any existing vacancy, including one that arose before the recess. A 14-day intra-session break is long enough to avoid the Court’s presumptive bar on recesses shorter than 10 days. (Derived from NLRB v. Noel Canning (n.d.).)