President Obama's NLRB Recess Appointments Ruled Unconstitutional

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said the president's appointment of three members in January 2012 violated the Constitution.

President Obama's Jan. 4, 2012, recess appointments of three people to the National Labor Relations Board are constitutionally invalid because the U.S. Senate was not actually in recess, three judges of the U.S. Court of Appeals for the D.C. Circuit have ruled in a decision issued Jan. 25. Unless the administration successfully argues at a rehearing before the full appellate court or is successful in an appeal to the U.S. Supreme Court, the ruling will invalidate hundreds of NLRB decisions issued since the appointments.

It is both a clear victory for business groups including the U.S. Chamber of Commerce and the party in the case decided Jan. 25, Noel Canning, and a rebuke to the president. The case is Noel Canning v. NLRB, No. 12-1115.

Denise Keyser, a labor & employment law partner in the New Jersey office of Ballard Spahr LLP, called the decision "huge."

"By making the decision the way they have, they have just changed the way the U.S. government functions going forward," she said during a phone interview. She said since 1921, presidents have made intrasession appointments like these hundreds of times. And this court went even farther than simply ruling these appointments invalid and the case against Noel Canning also invalid because the board legally lacked a quorum allowing it to act; the court said vacancies to be filled in this way also must arise during an official Senate recess, Keyser explained. "Forget it. There are going to be judgeships and other federal offices that are going to be vacant for a very long time," she said.

As for the administration's prospects if the case does reach the U.S. Supreme Court, she said, "This is the right Supreme Court to take this up to if you want the decision upheld." The D.C. Circuit court's chief judge, David Sentelle, wrote the majority opinion in language that will appeal in particular to the high court's conservative, strict-constructionist justices, including Justices Antonin Scalia and Samuel Alito, she said.

D.C. Circuit Judge Thomas Griffith filed a brief concurring opinion in the Jan. 25 case that said the court should have decided just the constitutionality of the appointments in the context of vacating the board's order in the case before it, without wading into the broader constitutional issue.

The Retail Industry Leaders Association cheered the result. "We applaud the court's decision overturning the Administration's unconstitutional appointments to the NLRB," Bill Hughes, senior vice president for government affairs at the association, said in a statement posted on its website. "The decision should also send a strong message that precedent and the rule of law matter. The NLRB's activist agenda has gone unchecked resulting in numerous actions that have overturned decades of precedent to establish micro-unions and deny employers due process rights. These decisions and countless others hurt businesses and undermine needed job creation."

No one can miss the political significance of the decision; amicus briefs supporting Noel Canning were filed by U.S. House Speaker John Boehner and U.S. Senate Minority Leader Mitch McConnell, who filed his brief for himself and 41 other U.S. senators.

Joe Trauger, the National Association of Manufacturer's vice president of Human Resources Policy, issued this statement: "The NLRB's activist and aggressive actions in recent years have raised significant concerns, including challenges to the constitutionality of the Board's composition. Today's ruling gives strong confirmation to those concerns and is a significant rebuke of what has become an increasingly overreaching NLRB with an intent to ignore its statutory authority. The NLRB, currently made up of only three members without a dissenting voice, has had two of those member's appointments invalidated by the U.S. Court of Appeals for the D.C. Circuit. If this ruling stands, Chairman Mark Pearce will be the only properly seated member of the NLRB until August when his term expires. This ruling speaks volumes about the way the Board has been constituted and throws a significant roadblock in its rulemaking ability.For manufacturers that have been forced to deal with increased burdensome regulations, this is an important moment -- perhaps a sign that we may see an NLRB in the future that will exist to improve employer–employee relations in this country rather than tear them down. The NAM will be reviewing the opinion thoroughly to determine what impact this significant development will have on any and all decisions made by the Board over the past year.”\"

The U.S. Chamber of Commerce's president and CEO, Thomas J. Donohue, applauded the decision in a statement of his own: "We are pleased with the D.C. Circuit's ruling that the President's recess appointments to the NLRB were unconstitutional," he wrote. "We warned last year that by appointing these members to the NLRB in such a controversial fashion, the President placed a cloud of uncertainty over the agency and its work. The D.C. Circuit's historic decision has confirmed our concerns. The U.S. Chamber has been proud to stand with our member Noel Canning from the beginning, and they will continue to enjoy our full support and backing."

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