Case Title

National Labor Relations Board, Petitioner v. Noel Canning, No. 12-1281, United States Supreme Court

Document Type

Briefs and Court Filings

Publication Date



The Recess Appointments Clause does not permit the unilateral appointments to the NLRB made by the President in this case. Those appointments - made during a three-day “intra-session” break when the Senate was meeting pro forma - are unique in the history of the Republic. They are also the culmination of unnecessary and inappropriate Executive overreaching. This overreaching has undermined a valuable Senate prerogative in a manner unfathomable to the Founders and inconsistent with the design of the Constitution.

The primary purpose of this brief is to show that adhering to the original meaning of the Recess Appointments Clause has not and will not disrupt the orderly governance of the Nation. The constitutionally prescribed modes of appointment worked perfectly well for a very long time, and modern circumstances make it even easier to continue using the Constitution's procedures. Whether the clear text, structure, purpose, and history of the Constitution should give way to “practical” considerations of the modern administrative state therefore cannot even be considered an issue in this case.

Notwithstanding a few relatively minor deviations from the constitutional design, Presidents throughout the first 160 years of our Nation's history largely, and certainly without insurmountable difficulties, adhered to the textual and structural confines of the Appointments Clause and the Recess Appointments Clause with which it is closely related. Their ability to abide by the Constitution, even in sometimes very difficult situations, provides a ready model for exercising the Presidential-appointment power today.