Third court deals blow to Obama's NLRB recess appointments

A third federal appeals court has ruled against President Obama’s appointments to the National Labor Relations Board (NLRB), finding that he bypassed the Senate in a manner not allowed by the Constitution.

The U.S. Court of Appeals for the Fourth Circuit on Wednesday ruled that the Senate was not in an end-of-session recess when Obama appointed three members to the NLRB last year, making their placements invalid and nullifying any action by the board since that time.

The 2-1 ruling confirms previous judgments by other federal courts that also found appointments to the NLRB unconstitutional while the Senate was in the middle of its session.

On Wednesday, the panel ruled that recess nominations by the president can be made only “during an intersession break — the period of time between an adjournment sine die [without designating a date for a future meeting] and the start of the Senate’s next session,” Judge Clyde Hamilton wrote in the opinion. 

Because Obama made the three appointments to the NLRB while the Senate was in simply a “pro forma,” or cursory, recess, the appointments are “constitutionally infirm,” the court ruled. 

At issue in the case was whether the NLRB had authority to issue enforcement actions against two companies in 2012. If the three appointments made by Obama in January 2012 were invalid, that would leave the five-member board without the ability to form a quorum, and hence unable to exercise most of its power.

Wednesday’s ruling confirms previous appeals court opinions, which have declared that only the time between sessions of the Senate count as recesses for the purposes of presidential recess appointments.

Last month, the Supreme Court agreed to hear one of those cases, NLRB v. Noel Canning, in its next term. 

The high court will have the ultimate say on the matter, though two of the disputed NLRB members, Sharon Block and Richard Griffin Jr., will have their still-pending nominations withdrawn as result of a deal reached in the Senate on Tuesday to confirm five of Obama’s other nominees.

The third person appointed to the NLRB in 2012, Terence Flynn, has since left the board.

In exchange for Obama withdrawing his nominations of Block and Griffin, Senate Republicans have pledged not to block a vote on his new nominees.

After the Senate deal was announced on Tuesday, President Obama nominated Nancy Schiffer and Kent Hirozawa, a former union lawyer and counsel to the NLRB, respectively, to the board.