The DC Circuit Court of Appeals held in January that President Obama’s 2010 recess appointment of Craig Becker to the National Labor Relations Board was unconstitutional. In so doing, the Court concluded that valid recess appointments can only occur in intersession breaks of the Senate. Because the appointment of Becker was instead an intrasession adjournment that might be subject to pro forma sessions, the Court determined the Senate was not officially in recess. Accordingly, the appointment of Mr. Becker was an improper attempt to circumnavigate constitutional mandates.
The Third Circuit has now added its voice to the debate. It recently issued a similar ruling in which it joined the DC Circuit. It found that the President’s recess appointments to the NLRB failed to preserve the Senate’s “advice” and “consent” role in the appointments. The disqualification of Mr. Becker as a valid member of the Board prevented the legally required NLRB quorum for making decisions and made the NLRB’s decision to allow employees at a nursing facility in New Jersey to unionize invalid.
The Obama Administration has already appealed the DC Circuit Court’s decision to the Supreme Court and the issue is set to be decided some time later this year. The appeal may be moot though. The relevant Senate subcommittee recently held a hearing on five separate nominations by President Obama to the NLRB. If these nominees are ultimately approved by the Senate, it’s likely they will begin making attempts to redo prior decisions which have been invalidated by the D.C. Circuit and now the Third Circuit.
The outcome remains uncertain with one exception. Because there are politics involved, the outcome is still uncertain.
