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Monday, February 25, 2013

The Noel Canning Decision and Recess Appointments Made from 1981-2013

Henry B. Hogue
Analyst in American National Government

Maeve P. Carey
Analyst in Government Organization and Management

Michael W. Greene
Information Research Specialist

Maureen Bearden
Information Research Specialist

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) issued its opinion inNoel Canning v. National Labor Relations Board(hereafter Noel Canning).1 In its ruling, the court determined that the President can make recess appointments only during intersession recesses,2 and that such appointments can be made only to vacancies thathave occurred during the recess in which the appointment is made.3 The court also appeared to support the position that the recess appointment power may not be used to fill newly established positions, although that questionwas not before the court.

This memorandum provides preliminary discussion of the impact Noel Canningmight have had on recess appointments made since January 20, 1981, the beginning of the Ronald W. Reagan Administration, had the decision preceded these appointments. It presents data on all the recess appointments during that period that CRS has been able to identify (hereafter, “documentedrecess appointments”). It also identifies, in summary and detailed form, which of these appointments might have been affected by the court’s first determinationabove, which essentially precludes intrasessionrecess appointments.

It should be noted that most of the recess appointments discussed in this memorandum are unaffected by the Noel Canning decision, which was limited in its scope to President Barack Obama’s January 2012 recessappointments to the National Labor Relations Board. In addition, the short duration of recessappointments, which last only until the end of the next session of the Senate, is such that almost all of the recess appointments listed in this memorandum have ended.

Date of Report: February 4, 2013
Number of Pages: 29
Order Number: M-020413
Price: $29.95

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