On Jan. 25, the U.S. Court of Appeals for the D.C. Circuit held that the purported recess appointments of National Labor Relations Board members Sharon Block and Richard Griffin, as well as former member Terence Flynn, were unconstitutional because these appointments were made while the Senate was not in an intersession recess and the vacancies these three putative members purportedly filled did not begin during an intersession recess of the Senate. Noel Canning v. NLRB, 705 F.3d 490.
Critics of this decision contend that Noel Canning has serious, far-reaching consequences because it does not give the president the authority to fill vacant offices during intrasession recesseswhich account for most of the time that the Senate is not in session; precludes him from filling many vacancies even during intersession recesses; and threatens significant disruption of the federal government operationsincluding, most immediately, those of the board.
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