Nearly four months after an appeals court ruled that recess appointments to the National Labor Relations Board (NLRB) made in 2012 were invalid, another appellate court has ruled a previous recess appointment unconstitutional.
The U.S. 3rd Circuit Court of Appeals ruled May 16 in NLRB v. New Vista Nursing & Rehab. that President Barack Obama’s 2010 recess appointment of Craig Becker to the NLRB was invalid. Becker, a Democrat, served on the Board from April 5, 2010, through January 3, 2012.
The 3rd Circuit ruling follows the January 25 ruling in Noel Canning v. NLRB from the D.C. Circuit. In April, the NLRB asked the U.S. Supreme Court to review the D.C. Circuit’s decision, and the Board also may ask for Supreme Court review of the new 3rd Circuit ruling.
The normal process for filling NLRB vacancies is for the president to submit nominations for confirmation by the Senate, but the Constitution allows the president to put people on the Board without Senate confirmation if the Senate is in recess. Obama appointed Becker in 2010 and Sharon Block and Richard Griffin in 2012 when the Senate wasn’t meeting regularly but remained in “pro forma” session, meaning some kind of session was gaveled in and out every few days. The Obama administration maintains that the Senate, which had failed to act on previous nominations, was essentially in recess when the appointments were made.
A statement from the Indianapolis office of law firm Faegre Baker Daniels explains that the appellate courts considered clauses in the U.S. Constitution addressing appointments. “At issue is when the president can bypass the U.S. Constitution’s appointment clause, which requires that presidential appointments be subject to the advice and consent of the Senate and, instead, can rely on the recess appointments clause,” the firm’s statement explains.
The Faegre Baker Daniels statement goes on to explain that the 3rd Circuit rejected the NLRB’s contention that to invalidate the recess appointments “would give the Senate too much power to engage in mischief designed to prevent the president from exercising his recess appointment power by manipulating the timing of types of adjournments,” the statement says, adding that the court said such abuse is present under any recess definition and could potentially allow the president to engage in mischief.