SCOTUS Ruling on the Recess Appointments Clause Could Impact NLRB Rule-Making, Says Stuart Buttrick in Law360

On June 26, 2014, the Supreme Court decided National Labor Relations Board v. Noel Canning, holding that President Obama did not have the authority to appoint three members of the National Labor Relations Board (NLRB) during a three-day recess between pro forma sessions of the Senate because such a recess was too short to constitute a "recess" under the Recess Appointments Clause in Article II of the Constitution. Faegre Baker Daniels partner Stuart Buttrick was asked by Law360 to explain the implications of this significant decision.

"The decision is significant from a constitutional perspective because it is the first time the Supreme Court has ever addressed the meaning of the Recess Appointments Clause. From a labor law perspective, the decision invalidates hundreds of NLRB cases that were decided by the unconstitutionally appointed members of the NLRB. The current NLRB will now need to spend significant time reconsidering all of the improperly decided cases — like it did when the court decided New Process Steel v. NLRB in 2010. Moreover, Noel Canning also calls into question other acts taken by the NLRB, including its appointments of regional directors and other board officials. Finally, I think it is likely that Noel Canning will significantly slow down any potential controversial rule-making by the board — both because it may now be more wary of additional legal challenges to such rules and because of the time needed to revisit all of the improperly decided decisions that were invalided by Noel Canning," said Buttrick.