D.C. Circuit Finds NLRB Recess Appointments Unconstitutional
By Patrick Scully
Accordingly, the Court vacated the Board's order against the employer in Noel Canning, 358 NLRB No. 4 (February 8, 2012). More significantly, the validity of every decision issued by the NLRB in the past year, including some of the Agency's most controversial reversals of long-standing precedent, is now in doubt. The Administration and the NLRB likely will appeal the decision to the Supreme Court.
Primarily, the D.C. Circuit Court of Appeals held that the term in the Constitution permitting the President to appoint officers subject to Senate confirmation during "the Recess" applies only to intersession recesses. The Obama Administration and the NLRB had contended that the term could be applied to permit appointments during a session of Congress. Among other things, they contended that an adjournment as brief as three days constituted a "recess" sufficient to permit the President's so-called "recess appointment" of NLRB members. The Court today rejected these arguments, finding their adoption "would wholly defeat the purpose of the Framers [of the Constitution] in the careful separation of powers structure reflected in the Appointments Clause."
The D.C. Circuit also held that the NLRB lacked a quorum to issue decisions because sufficient vacancies on the Board did not "happen" during the Recess of the Senate. Because the relevant vacancies on the Board did not "happen" during an intersession recess, they could not be filled by recess appointment.
Because appeal of the Court's ruling is widely expected, the decisions issued by the Board cannot be completely disregarded. However, those decisions will remain in limbo while the appeal process plays out. Additionally, the NLRB may refrain from issuing further decisions while it pursues an appeal. If nothing else, today's decision has significantly pushed back against an NLRB that was aggressively attempting to expand its reach and leaning heavily to the side of organized labor.
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©2013 Sherman & Howard L.L.C. January 25, 2013