On June 26, 2014, in NLRB v. Noel Canning et al., 134 S.Ct. 2550 (2014), the Supreme Court affirmed the D.C. Circuit and unanimously held that that the President violated the Recess Appointments Clause of the Constitution (the “Clause”) in 2012 when he appointed Sharon Block, Richard Griffin, and Terence Flynn to the National Labor Relations Board (“NLRB” or “Board”) during a Senate pro forma session. The decision prompted the NLRB to move the Sixth and Tenth Circuits to remand and vacate the orders challenged in a series of important Indian Country labor cases. See Chickasaw Nation v. NLRB, Saginaw Chippewa Indian Tribe of Michigan v. NLRB, and Little River Band of Ottawa Indians v. NLRB.
The Court made three specific determinations. First, it held that the Constitution allows the president to make recess appointments during “intra-sessions”—such as a summer recess in the midst of a session—and during “inter-sessions”—the break between the two one-year sessions. The majority found the length of the recess to be more important than whether it occurred during or between sessions of Congress. In dicta, the Court also stated that recesses of more than three days but less than ten days are “presumptively” too short to fall within the Clause because it does not fundamentally impede the federal government’s capacity to function. Second, the Court ruled that the President can make a recess appointment for vacancies that arise before a recess and continue into the recess. Finally, the Court held that a “pro forma” session—where the Senate declares to be in session but does not conduct business—is not a recess.
The majority decision (Justice Breyer joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan) affirms the decision of the D.C. Circuit, while disagreeing with the Circuit Court’s more narrow interpretation that the Clause applies only where vacancies arise during the formal recess between sessions of Congress. The majority concluded that “when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the Clause,” and that the President’s three recess appointments, made during a three-day break in the pro-forma sessions, were not authorized by the Clause. Justice Scalia concurring (joined by the Chief Justice and Justices Alito and Thomas) would have affirmed the D.C. Circuit’s decision, remarking that the majority’s opinion, deferring to past practice rather than the plain text of the Clause, promotes an adverse-possession theory of executive authority. The effect of the Court’s decision was to render invalid any decisions in which any of the three appointees participated on the decision-making panel.
On the heels of the Canning Decision, the NLRB asks the Sixth and Tenth Circuits to vacate the orders challenged by the Chickasaw Nation, Saginaw Chippewa Indian Tribe, and Little River Band of Ottawa Indians—all of which were made by panels that included the three Board appointees—and to remand the matters to the NLRB. In its motions, the NLRB acknowledges that the challenged orders were issued by an improperly constituted Board. Therefore, it is expected that on remand, the now-properly-constituted Board’s substantive decisions will be identical upon reissuance. So it appears likely that all of these cases will ultimately go back up to their respective federal Circuit Courts for future appeals.
Questions should be directed to Mark A. Anderson (firstname.lastname@example.org), Joseph F. Halloran (email@example.com), or Michael L. Murphy (firstname.lastname@example.org), or 651-644-4710.
 10th Cir., Case Nos. 13-9578, 13-9588
 6th Cir., Case Nos. 13-1569, 13-1629
 6th Cit., Case Nos. 13-1464, 13-1583