Another court strikes down Obama’s NLRB appointments


President Barack Obama’s controversial, pro-union recess appointments to the National Labor Relations Board (NRLB) have been struck down by a third appellate court.

The Fourth District Court of Appeals ruled on Wednesday that the appointments were unconstitutional because the Senate had not adjourned for recess when President Obama made the appointments in January 2012.

“In this case, the President’s three January 4, 2012 appointments to the Board were not made during an intersession recess because Congress began a new session on January 3, 2012. Consequently, ‘these appointments were invalid from their inception,’” wrote Judge Clyde Hamilton, citing the case pending before the Supreme Court. “Because the [NLRB] lacked a quorum of three members when it issued its 2012 unfair labor practices decisions in both the Enterprise and Huntington cases, its decisions must be vacated.”

The Constitution, in Article II, Section 2, provides the president with the power to submit nominations for various offices, including ambassadors, judges, and cabinet-level posts. In a crucial check on executive power, these nominations are reviewed by the Senate and must be approved by 2/3 of that chamber.

Article II, Section 3 notes that when the Senate is not in session, the president can use his power to “fill up all Vacancies that may happen.” But the Senate would still need to approve the nomination during their next session, otherwise the commission expires upon adjournment. And therein lies the problem with the moves made by President Obama — the Senate was in pro forma session, meaning that it had not adjourned.

The D.C. Circuit and Third District appellate courts have already weighed on the matter, with the former striking down all three appointments and the latter only vacating one appointment.

This has been a contentious issue, particularly in the Senate, where Majority Leader Harry Reid (D-NV) threatened to limit the filibuster for cabinet appointments because Republicans had held up confirmation votes, including two of the controversial nominees to the NRLB.

Judge Hamilton realized that the court was weighing into politically murky territory, but explained that the courts had to be “constant” in its interpretation of the Constitution and, in so doing, denied the NLRB from enforcing its ruling.

“Unfortunately, in modern times, the question concerning the scope of the President’s recess appointment power under the Recess Appointments Clause has become a political debate regarding the qualifications of the President’s nominations, rather than a genuine, meaningful debate regarding the true meaning of the clause,” he noted. “Today, it is the Executive Branch, with a Democratic president in office, seeking to exercise expansive recess appointment power. Republicans are crying foul.”

“Who knows what tomorrow will bring? Regardless, one thing must remain constant—the meaning of the Recess Appointments Clause, and it is the duty of this court to set forth that meaning irrespective of political fortunes,” he added. “We have done so here. We deny the Board’s applications for enforcement of its orders.”

The Supreme Court will hear arguments this issue when it takes up NLRB v. Canning in its next term. Though there has been an agreement in the Senate that puts two of the controversial appointments to rest, the Court is still likely to settle the issue of recess appointments.

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