About Seton Hall Law

Professor Edward Hartnett

Professor Edward Hartnett cited in Supreme Court decision

U.S. Supreme Court cites Professor Hartnett’s article, published in CARDOZO LAW REVIEW, in ruling on National Labor Relations Board v. Noel Canning

On June 25, the U.S. Supreme Court ruled unanimously that President Obama exceeded his authority when he appointed three officials to the National Labor Relations Board during a Senate recess. Their decision rendered the appointments illegal. In his opinion in the case of National Labor Relations Board v. Noel Canning, Justice Stephen Breyer cited Professor Edward Hartnett's article in the Cardozo Law Review in 2005 entitled, “Recess Appointments of Article III Judges: Three Constitutional Questions.”

In January 2012, President Obama made three appointments to the National Labor Relations Board, a federal agency which determines whether employers or unions are operating within the bounds of fair labor practices. A month later, two of the three appointees affirmed the ruling of an administrative law judge that Noel Canning Corporation, a canning and bottling facility, had transgressed labor regulations. Noel Canning, in turn, filed a petition in the U.S. Court of Appeals for the D.C. Circuit and included within the complaint a challenge to the constitutionality of the President’s appointments.

At the heart of the case is the interpretation of the Recess Appointments Clause. Ordinarily, the Senate must consent before a federal officer may be appointed by the President. But since the President is always on duty and the Senate is not, the Recess Appointment Clause empowers the President, without the consent of the Senate, "to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session,"  according toArticle II, Section II of the U.S. Constitution. 

Presidents from Washington to Obama have made recess appointments. But none had ever done so during a three-day break during a Senate session. President Obama argued that because the Senate meetings were very brief, pro forma, with no business done and conducted by a single Senator, the recess should be considered much longer than three days.

The case presented the Court not only with a narrow question about these pro forma sessions, but two much broader questions about the Recess Appointments Clause:

  1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between sessions of the Senate.

  2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.

  3. Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

Professor Hartnett’s article, written before the Senate began to use pro forma sessions to block recess appointments, analyzes the text and the history of the Recess Appointments Clause. The article addresses both of the two broad questions in the case, paying particular attention both to the recess appointment practices of our first presidents and to when presidents began to make recess appointments during recesses within a Senate session.

Justice Breyer’s opinion for the Court follows Professor Hartnett’s analysis of both questions, frequently following its structure and sometimes even its phrasing. In holding that the President may make recess appointments during recesses during a Senate session, the Court cites Hartnett’s historical research regarding appointments made by President Andrew Johnson. In holding that the president may make recess appointments to offices that first became vacant prior to the recess, the Court cites Hartnett’s historical research regarding appointments made by President James Madison. On both of these issues, the Court vindicated presidential power.

On the third issue, however, the Court held that President Obama had gone too far in second-guessing the Senate’s own determination that it was in session during the pro forma sessions, sessions at which it can (and has) passed legislation by unanimous consent.

Professor Hartnett observes, “A decade ago, when I was digging through files in the National Archive and spending weeks trying to analyze exactly when certain offices became vacant and therefore when early Presidents first began to make recess appointments to fill vacancies that began during a Senate session, it was easy to wonder whether anyone would care - or even read the results. It is gratifying to see scholarship matter, and have the Supreme Court, in a major constitutional case, rely on information that I had uncovered about an appointment made by President Madison.”

Professor Hartnett is the Richard J. Hughes Professor of Law at Seton Hall Law, and teaches and writes about Constitutional Law. In addition to his many articles and other publications, Professor Hartnett is a co-author of Supreme Court Practice (BNA, 2013), now in its Tenth Edition, considered the authoritative guide both for attorneys arguing before the U.S. Supreme Court and for the justices themselves.

Read the U.S. Supreme Court opinion in National Labor Relations Board v. Noel Canning