Three appointments to the National Labor Relations Board (NLRB) by President Obama using his "recess appointment" authority are unconstitutional, the U.S. Court of Appeals for the District of Columbia ruled today.
The three-justice panel ruled that the Senate is in recess only between one Congressional session and the next, which was not the case when Obama made his appointments on Jan. 4, 2012. In fact, the Senate had commenced a new session just the day before, the jurists noted.
If it holds, the ruling seems sure to invalidate all NLRB decisions from January 2012 onward. Take away those three appointees, and the NLRB would be reduced to just two members, and the Supreme Court earlier ruled that NLRB decisions are valid only when issued by a quorum.
Legal analysts also point out that the Appeals Court's decision is sure to be appealed for full court (en banc) review or even escalated to the Supreme Court, either of which would keep the three members on the board during the appeals process.