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More Trouble for Labor Board Recess Appointees

Another federal appeals court is siding with the District of Columbia Circuit, saying that the president may only make recess appointments between sessions of Congress.

A three-judge panel of the Philadelphia-based 3rd Circuit has thrown out National Labor Relations Board orders, saying that an NLRB panel lacked the quorum required to conduct business.

“We conclude that the National Labor Relations Board panel below lacked the requisite authority because one panel member was invalidly appointed during an intrasession break,” the court held.

The Congressional Research Service noted in a March report that other federal appeals courts have upheld an expansive presidential recess appointment power in the past:

The D.C. Circuit’s decision in Noel Canning contrasts with Allocco, Woodley, and Evans in a number of ways. Most prominently, of course, are the conflicts created by Noel Canning’s two chief holdings. Whereas the Second, Ninth, and Eleventh Circuits had previously determined that the Clause authorized the President to fill any vacancy that “happens to exist” at the time of a recess, regardless of when the vacancy arose, the Noel Canning court took a more restrictive view of the Clause, holding that the President may only fill those offices that first become vacant during the recess in which the appointment is made. In addition, the D.C. Circuit’s holding that the President’s recess appointment authority is only triggered during an intersession recess, differs from the Eleventh Circuit’s holding in Evans that the President may make recess appointments during both intersession and intrasession recesses. These differences are substantial and may provide a strong justification for the Supreme Court to grant review of this case.

NLRB Nominees Also Face Senate Scrutiny

“My problem is not with their qualifications. My problem is that they continued to decide cases after the federal appellate court unanimously decided they were unconstitutionally appointed,” Alexander said. “Not only has the president … shown a lack of respect for the Constitutional role of the separation of powers and the curb on the executive branch that Article One provides, but I believe these two individuals have as well.”

Alexander spoke about the need for recess appointments during the infancy of the American political system, when it would take senators from Texas, for example, more than a week to travel back to the Capitol from their home.

“Recess appointments were needed back in the day,” Alexander said. “Some may wonder why we still have them. Well, it’s because they are written in the Constitution. But on January 4, 2012, President Obama acted as if they weren’t there at all. He made Senate appointments while the Senate was not in recess. No one has gone as far a President Obama did that day. This is part of a disturbing pattern of end-runs around Congress.”

Sharon Block and Richard Griffin were among the individuals recess appointed by President Barack Obama while the Senate was holding regular pro-forma sessions in January 2012. Obama gave a similar appointment to Richard Cordray to head the Consumer Financial Protection Bureau. Senate Majority Leader Harry Reid, D-Nev., told reporters Wednesday that Cordray’s nomination to the same post would be put to a floor vote next week, even though there’s no reason to expect anything other than unified Republican opposition.

Senators had contended in advance of the Cordray and NLRB announcements that the pro-forma sessions precluded such appointments, and Senate Republicans retained Miguel Estrada as outside counsel to represent their interests in the matter.

Lauren Smith contributed to this report.

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