January 25, 2013
Appeals court rules NLRB recess appointments are invalid

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit has ruled that President Obama did not have the authority to make three recess appointments last year to the National Labor Relations Board (NLRB). The decision was unanimous.

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While the Senate was away for the holidays, on what the Obama administration argues was a recess, the President appointed three members to the Board to bring the agency to the required quorum

The Appeals Court found that the Senate was not in recess because they met for brief “pro forma” sessions every few days, which means Obama did not have the authority to make the recess appointments.

The Obama administration is expected to appeal the decision to the U.S. Supreme Court. If the Supreme Court upholds the court’s ruling, decisions issued by the Board since the time of the recess appointments will be invalidated.

NLRB Chairman Mark Gaston Pearce issued the following statement in response to the court’s decision:

“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

BLR legal editors are reviewing the opinion and will provide additional analysis.

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