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NLRB Appointments Held Unconstitutional


On Friday, January 25, 2013, the United States Circuit Court of Appeals for the D.C. Circuit held that President Obama violated the U.S. Constitution by making recess appointments to the National Labor Relations Board  (NLRB) in January 2012. The Obama administration is expected to appeal the decision to the U.S. Supreme Court.

The administration is taking the position that, "This is one court, one case, one company". But Republican lawmakers who have opposed the administration's recess appointments rejected that view. "Today's ruling will certainly cause other opinions unconstitutionally issued by the [Labor] Board to be invalidated," Rep. Darrell Issa, R-Calif., said. "The unconstitutionally appointed members of the NLRB should do the right thing and step down." Issa also urged the NLRB to take the "responsible course" and stop issuing decisions "until a constitutionally sound quorum can be established." Senator Mike Johanns (R-Nebr.) has called for the appointees' immediate resignations.

The NLRB currently only has three members -- the typically five-member board is only allowed to issue decisions when it has at least three members. The court decision pertained to three separate appointees, two of whom are still on the board. If those two cannot serve, there would be just one validly appointed member -- effectively shutting the Board down.  If the D.C.Circuit's decision stands, it could also invalidate hundreds of Labor Board decisions made over the past year.

The NLRB claims that the D.C.Circuit's decision will not affect the Board's operations. NLRB Chairman Mark Gaston Pearce said the board "respectfully disagrees with today's decision and believes that the President's position in the matter will ultimately be upheld." He said "we will continue to perform our statutory duties and issue decisions."

The legal challenge had been brought by a business in Washington state challenging the NLRB's authority to issue a decision against it.  Supported by dozens of Senate Republicans, the case argued the President didn't have the power to make three appointments to the NLRB. Attorneys for the Obama administration argued that he had the authority because the Senate was away for the holidays on a 20-day recess. The Constitution allows for recess appointments without Senate approval when Congress is in recess.

GOP lawmakers argued that the Senate technically had stayed in session because it was gaveled in and out every few days for so-called "pro forma" sessions.  GOP lawmakers used the tactic -- as Democrats had done in the past -- specifically to prevent the President from using his recess appointment power to install members to the Labor Board. The White House argued that the pro forma sessions -- some lasting less than a minute -- were a sham.

But the three-judge panel for the D.C. Circuit held that the appointments were not valid. The court held that the President could only fill vacancies with the recess appointment procedure if the openings arise when the Senate is in an official recess, which it defined as the break between sessions of Congress.

Given the importance of the issues raised, the matter will likely be decided by the U.S. Supreme Court. Until that happens, it appears that the NLRB will continue to render decisions. Those decisions may ultimately be held to be of no force and effect.  The result is great upheaval and uncertainty in labor law in the coming year. Stay tuned.


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