OCTOBER TERM, 2013
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
NATIONAL LABOR RELATIONS BOARD v. NOEL
CANNING ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 12–1281. Argued January 13, 2014—Decided June 26, 2014
Respondent Noel Canning, a Pepsi-Cola distributor, asked the D. C.
Circuit to set aside an order of the National Labor Relations Board,
claiming that the Board lacked a quorum because three of the five
Board members had been invalidly appointed. The nominations of
the three members in question were pending in the Senate when it
passed a December 17, 2011, resolution providing for a series of “pro
forma session[s],” with “no business . . . transacted,” every Tuesday
and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess.,
923. Invoking the Recess Appointments Clause—which gives the
President the power “to fill up all Vacancies that may happen during
the Recess of the Senate,” Art. II, §2, cl. 3—the President appointed
the three members in question between the January 3 and January 6
pro forma sessions. Noel Canning argued primarily that the ap-
pointments were invalid because the 3-day adjournment between
those two sessions was not long enough to trigger the Recess Ap-
pointments Clause. The D. C. Circuit agreed that the appointments
fell outside the scope of the Clause, but on different grounds. It held
that the phrase “the recess,” as used in the Clause, does not include
intra-session recesses, and that the phrase “vacancies that may hap-
pen during the reces