Recess Appointments to the NLRB Unconstitutional

The U.S. Court of Appeals for the D.C. Circuit Court ruled unanimously that President Obama violated the U.S. Constitution when he appointed members to the National Labor Relations Board (NLRB) during a Senate recess. IEC actively opposed the appointments and applauds the Appeals Court’s decision (Official case name is Noel Canning v. National Labor Relations Board).

On January 4, 2012, during the U.S. Senate’s 20-day recess, President Obama appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin, and NLRB counsel Terence Flynn to vacant positions on the NLRB. Flynn stepped down from his position in July 2012. All three confirmations had been blocked in the Senate – many Republicans claimed the Board had become too pro-union and that the candidates would exasperate the problem.

To avoid all recess appointments, the Senate technically remained in “pro forma” sessions by gaveling in every few days. Based on that, the three-judge appeals panel declared that the NLRB appointments during that time were unlawful.

The Obama Administration is expected to appeal to the U.S. Supreme Court. If the Supreme Court upholds the Appeals Court’s ruling, all of the NLRB’s decisions in 2012 will be declared invalid. It will also leave the Board with only one sitting member, two short of quorum.

Also on January 4, Richard Corday was appointed as the head of the Consumer Financial Protection Bureau. That has been challenged in a separate case.

IEC will keep members abreast to any future happenings in this case.