Search Penny Hill Press

Tuesday, April 9, 2013

Practical Implications of Noel Canning on the NLRB and CFPB

David H. Carpenter
Legislative Attorney

Todd Garvey
Legislative Attorney

In Noel Canning v. National Labor Relations Board, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) ruled that President Obama’s appointments of three Members to the National Labor Relations Board (NLRB) were constitutionally invalid. In reaching its decision, the D.C. Circuit concluded that under the Recess Appointments Clause, the President may only make recess appointments during a formal intersession recess (a recess between the end of one session of Congress and the start of another), and only to fill those vacancies that arose during the intersession recess in which the appointment was made.

The legal reasoning of the case, if adopted by other courts or affirmed by the Supreme Court, could significantly alter the relationship between the President and the Congress in the appointments context. It also would cast serious doubt upon an array of previous actions by the NLRB and its ability to function in the future. Furthermore, because Richard Cordray was appointed as Director of the Bureau of Consumer Financial Protection (CFPB) at the same time and in the same manner as the NLRB appointees, Noel Canning raises questions about the validity of Cordray’s appointment; the validity of various actions already undertaken by the CFPB; and the authority of the CFPB to function going forward.

However, the opinion’s immediate impact on the functioning of the Board may be limited because the D.C. Circuit’s order in Noel Canning vacated only the Board’s administrative ruling that the company had engaged in an unfair labor practice. The decision did not invalidate any other Board actions, nor did the court issue an injunction preventing Board Members from taking any specific actions in the future. Moreover, the decision only carries precedential value within the D.C. Circuit and in no way binds other federal courts outside of the circuit.

This report assesses the potential legal impact Noel Canning may have on the past and future operations of the NLRB and the CFPB.

A companion report, CRS Report R43030, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications, by Todd Garvey and David H. Carpenter focuses on the ramifications that the Noel Canning decision might have on the President’s authority to make recess appointment by providing a legal analysis of Noel Canning and the applicable case law that existed prior that decision. While sharing the general overview of the facts and legal reasoning necessary for understanding how Noel Canning might affect the NLRB and CFPB, this report does not duplicate the companion report’s detailed constitutional analysis of the Recess Appointments Clause.

Date of Report: April 1, 2013
Number of Pages: 26
Order Number: R43032
Price: $29.95

To Order:

R43032.pdf  to use the SECURE SHOPPING CART


Phone 301-253-0881

For email and phone orders, provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.