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labor Obama NLRB Recess Appointments Unlawful, Court Says

The US Court of Appeals, in Washington DC, issued a decision declaring the recess appointments Pres. Obama made to the NLRB in Jan. 2012 are unconstitutional.

President Barack Obama’s recess appointments to the U.S. National Labor Relations Board last year were “constitutionally invalid” because the Senate wasn’t in recess at the time, a federal appeals court ruled.

The U.S. Court of Appeals in Washington in a unanimous ruling today sided with Republican lawmakers and a canning company that challenged the appointments. The judges said the definition of “the Recess” in the Constitution’s Recess Appointments Clause is limited to the period between one Congress and the next, and that Congress had begun a new session at the time the president made the appointments.

“Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” U.S. Circuit Judge David Sentelle wrote.

The ruling today is the first substantive decision by a federal appeals court on several challenges to the president’s naming of the NLRB members on Jan. 4, 2012, while the Senate was holding so-called pro-forma sessions that sometimes involved a single senator appearing in the chamber every third day.

To prevent Obama from making appointments after Congress started a holiday break last December, House and Senate Republicans refused to adopt a resolution to formally adjourn.

Blocking Cordray

Congressional Republicans were seeking to block the president from appointing former Ohio Attorney General Richard Cordray as the first head of the Consumer Financial Protection Bureau, having refused a confirmation vote since he was nominated in July 2011.

Obama put Cordray in the post on the same day as the NRLB board members. That appointment is also being contested in a lawsuit in federal court in Washington. Obama renominated Cordray yesterday.

Noel Francisco of Jones Day, who represented the canning company challenging the appointments, said anyone subject to regulations created by the Consumer Financial Protection Bureau would be able to file a lawsuit in Washington challenging them under the argument that Cordray’s appointment was invalid.

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Senate Minority Leader Mitch McConnell and 41 other Republican senators filed briefs challenging the NLRB appointments, and McConnell attended oral arguments in the case.

‘Soundly Rejected’

“With this ruling, the D.C. Circuit has soundly rejected the Obama Administration’s flimsy interpretation of the law, and will go a long way toward restoring the constitutional separation of powers,” Senator Orrin Hatch, a Utah Republican who joined the brief, said in a statement.

Nancy Cleeland, a spokeswoman for the NLRB, said the board has no immediate comment on the court’s decision. The labor board’s website lists more than 200 decisions issued since Jan. 4, 2012 when the recess appointments were made.

The validity of the NLRB appointments has been raised in at least three other cases.

The ruling today came in two cases brought by the canning company and union members who were seeking to reverse board rulings made by the Obama appointees.

Besides Sentelle, Circuit Judges Karen LeCraft Henderson and Thomas Griffith were on the panel. All were named by Republican presidents.

When Obama installed the officials, he cited his constitutional power to make recess appointments while the Senate is out of session.

Beth Brinkmann, a Justice Department lawyer, argued before the panel on Dec. 5 that the Senate wasn’t in session or acting as a legislative body from Jan. 3, 2012, to Jan. 23, 2012, because no legislation was passed, no votes were held and no nominations were considered.

‘Appointment Vacuum’

“Under the petitioners’ view, they create an appointment vacuum,” Brinkmann said.

The president used his authority to fill positions that if left vacant would have “substantially impaired the functioning of an executive branch agency,” the Justice Department said in court papers.

In today’s ruling, the judges rejected the administration’s position that an “alternative appointment procedure” is available during breaks in the Senate’s business during a continuing session.

“The board never states how short a break is too short, under its theory, to serve as a ‘recess’ for purposes of the Recess Appointments Clause,” Sentelle said.

‘Larger Problem’

He said that lack of specificity “merely reflects the board’s larger problem: it fails to differentiate between ‘recesses’ and the actual constitutional language, ’the Recess.’”

Gary Chaison, a labor professor at Clark University in Worcester, Massachusetts, said the administration will probably appeal the case to the Supreme Court.

“It’s going to create chaos,” he said. “The labor board decisions are going to be voided so I don’t think the administration has an option but to take it further.”

The case is Noel Canning v. National Labor Relations Board, 12-1115, 12-1153, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at