Obama dealt second court defeat over NLRB recess appointments

A federal appeals court has ruled that a recess appointment to the National Labor Relations Board (NLRB) was unconstitutional in a decision echoing a January case that cast doubt on the legitimacy of the agency’s actions.

In the ruling, the U.S. Court of Appeals for the Third Circuit found that former board member Craig Becker was unconstitutionally appointed to the board by President Obama during a 2010 Senate break.

The decision is similar to a January opinion from the D.C. Circuit that invalidated Obama’s 2012 appointments of three members to the board.

{mosads}After failing to overcome a filibuster launched by Senate Republicans, Obama appointed Becker to the board during a two week recess in March 2010.

The court, by 2-1 ruling, found that only recesses between Senate sessions at the end and beginning of each year qualify as periods when a president may make recess appointments. Since the Senate was in an intrasession recess during the regular session, not an intersession recess, Becker’s appointment was invalid, the court declared.

There were additional vacancies on the NLRB during the time, so the board would not have been able to form a quorum without Becker. As such, the court ruled that some orders handed down by the NLRB during that time were also invalid.

Becker left the board when his term expired in early 2012, and is now general counsel at the AFL-CIO.

Like the January case, Noel Canning v. NLRB, Thursday’s decision adds doubt to the legality of President Obama’s other recess appointments, including the head of the Consumer Financial Protection Bureau.

That case ruled that the appointment of two current board members during a pro forma session of the Senate was unconstitutional. It has since been appealed to the Supreme Court.

In the opinion, the Third Circuit judges seek to avoid injecting themselves into battles between the White House and Congress.

“We, as federal judges, are not empowered to regulate, recommend, or comment on how the two other branches of the federal government should use the powers the Constitution allocates between them — not because we can-but-chose-not-to, but because we lack the factual record, institutional tools, and constitutional authority to evaluate which branch is more or less likely to abuse the powers given to them,” Circuit Judge D. Brooks Smith wrote in the opinion.

“We can, however, and indeed we must, decide what powers each branch has and when they may use them,” he added.

Some in Congress, however, decried the ruling.

“This is yet another erroneous court decision squarely at odds with longstanding practice,” Rep. Rosa DeLauro (D-Conn.) said in a statement.

“Presidents of both parties have routinely made hundreds of recess appointments during intra-session recesses and without regard to when the vacancy first arose.”

— This story was updated at 4:31 p.m. with additional information.


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