D.C. Circuit: Obama's NLRB Recess Appointments Unconstitutional

By Robyn Hagan Cain on January 25, 2013 | Last updated on March 21, 2019

Last year, President Obama placed two Democrats and one Republican on the National Labor Relations Board (NLRB) during a Senate recess. Friday, the D.C. Circuit Court of Appeals issued a decision finding those appointments unconstitutional.

We don't know if the administration will seek en banc rehearing, or head straight to the Supreme Court, but -- with hundreds of NLRB rulings and questions about Consumer Finance Protection Bureau chief Richard Cordray's appointment hanging in the balance -- this case is not going away.

The NLRB supervises union elections and resolves disputes between private-sector employers and employees, but it can't operate without a quorum. The recess appointments preserved the quorum. Without them, The New York Times reports that the NLRB had only one validly appointed member, Chairman Mark Gaston Pearce.

Noel Canning, the Washington state bottling company that challenged the appointments, is counting on the quorum argument to invalidate an NLRB decision that it must enter into a collective bargaining agreement with a labor union.

Of course, recess appointments aren't a novel concept. Both Democrats and Republicans have used recess appointments, but Noel Canning argued that Obama violated the Constitution to fill the NLRB vacancies because the Senate was technically in session.

Whether or not the Senate is session seems straightforward. The Senate was on a 20-day break over the Christmas and New Year's holidays when Obama made the appointments, but it was gaveled in and out every few days for pro forma sessions. The purpose of the sessions? Thwarting Obama's recess power.

But just as the Senate was strategically meeting to prevent recess appointment, Obama strategically scheduled those appointments. A recess appointment expires at the end of the Senate's next session -- here, at the end of 2013 -- or when the appointee or someone else is nominated, confirmed or permanently appointed, whichever occurs first. Because Obama made the appointments at the clear start of a new congressional session, instead of one day earlier during the transition period, he doubled the length of time the appointees could serve.

Or he would have, at least.

The D.C. Circuit held that recess appointments are limited to intercession recesses. Since the Senate was in "pro forma" session at the relevant time, the appellate court ruled that the appointments were invalid from their inception. And, because the NLRB lacked a quorum of three members when it issued a decision in Noel Canning's case, that decision was invalid.

The appellate court's decision could set off a long-term headache for the White House. If the ruling stands, The Washington Post notes that all the decisions made by the NLRB since the appointees joined the board are invalid.

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