Under the Appointments Clause, the President is empowered to nominate and appoint principal officers of the United States, but only with the advice and consent of the Senate. In addition to this general appointment authority, the Recess Appointments Clause permits the President to make temporary appointments, without Senate approval, during periods in which the Senate is not in session. The unique facts underlying President Obama's recess appointments of Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB) and Terrence F. Flynn, Sharon Block, and Richard F. Griffin Jr. as Members of the National Labor Relations Board (NLRB, or Board) have brought the inherent tensions of the appointments process into stark focus. The President's recess appointments were challenged through various lawsuits filed by parties affected by actions taken by either the CFPB or the NLRB. On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) became the first court to evaluate the merits of these challenges. In a case entitled Noel Canning v. N ational L abor R elations B oard , the circuit court issued a broad decision invalidating the appointment of all three NLRB Board Members. The court concluded that under the Recess Appointments Clause, the President may make recess appointments only during a formal intersession recess (a recess between the end of one session of Congress and the start of another), and only to fill those vacancies that arose during the intersession recess in which the appointment was made. This report begins with a general legal overview of the Recess Appointments Clause and a discussion of applicable case law that existed prior to the D.C. The report then analyzes the Noel Canning opinion and evaluates the impact the case could have on the roles of the President and Congress in the appointments context. A companion report, CRS Report R43032, Practical Implications of Noel Canning on the NLRB and CFPB , by [author name scrubbed] and [author name scrubbed], provides a detailed discussion of the impact the Noel Canning decision may have on the functioning of the NLRB and the CFPB. Noel Canning challenged the NLRB's decision in the D.C. The D.C. Circuit's actual order in Noel Canning directly implicates only one specific action, against one specific party, within one specific circuit, the court's interpretation of the President's recess appointment authority could have a substantial impact on the future division of power between the President and Congress in the filling of vacancies. If affirmed by the Supreme Court, the likely effect of the reasoning adopted in Noel Canning would be a shift toward increased Senate control over the appointment of government officials and a decrease in the frequency of presidential recess appointments.
Under the Appointments Clause, the President is empowered to nominate and appoint principal officers of the United States, but only with the advice and consent of the Senate. In addition to this general appointment authority, the Recess Appointments Clause permits the President to make temporary appointments, without Senate approval, during periods in which the Senate is not in session. On January 4, 2012, while the Senate was holding periodic "pro forma" sessions, President Obama invoked his recess appointment power and unilaterally appointed Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB) and Terrence F. Flynn, Sharon Block, and Richard F. Griffin Jr. as Members of the National Labor Relations Board (NLRB).
The President's recess appointments were ultimately challenged by parties affected by actions taken by the appointed officials, and on January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) became the first court to evaluate the merits of the President's appointments. In a broad decision entitled Noel Canning v. National Labor Relations Board, the court invalidated the appointment of all three NLRB Board Members. In reaching its decision, the D.C. Circuit concluded that under the Recess Appointments Clause, the President may only make recess appointments during a formal intersession recess (a recess between the end of one session of Congress and the start of another), and only to fill those vacancies that arose during the intersession recess in which the appointment was made.
Although the D.C. Circuit's actual order in Noel Canning directly applies only to the NLRB's authority to undertake the single action at issue in the case, the court's interpretation of the President's recess appointment authority could have a substantial impact on the future division of power between the President and Congress in the filling of vacancies. If affirmed by the Supreme Court, the likely effect of the reasoning adopted in Noel Canning would be a shift toward increased Senate control over the appointment of government officials and a decrease in the frequency of presidential recess appointments.
This report begins with a general legal overview of the Recess Appointments Clause and a discussion of applicable case law that existed prior to the D.C. Circuit's decision in Noel Canning. The report then analyzes the Noel Canning opinion and evaluates the impact the case could have on the roles of the President and Congress in the appointments context. A companion report, CRS Report R43032, Practical Implications of Noel Canning on the NLRB and CFPB, by [author name scrubbed] and [author name scrubbed], provides a detailed discussion of the impact the Noel Canning decision may have on the functioning of the NLRB and the CFPB.