A second appeals court has now ruled that Barack Obama's appointment of Craig Becker to the National Labor Relations Board (NLRB), done while Congress was not officially in recess, because it was holding pro-forma sessions, was unconstitutional and the appointment is not valid.
The issue has far-reaching implications for both the NLRB and other boards, including Obama’s Consumer Financial Protection Bureau, which has been a frequent target of conservatives and whose director was a recess appointment.Two courts have now determined the recess appointments made by Barack Obama when the U.S. Senate was not official on recess, were unconstitutional, meaning all decisions that have been made by the NLRB in the time since the illegal appointments, should be invalidated.
The 2-1 decision Thursday from the U.S. Court of Appeals for the Third Circuit (posted here) found that the presidential recess appointment power is limited to breaks between sessions of Congress, not breaks within sessions or other adjournments during which the Senate might meet in pro forma sessions. The reasoning mirrors that in a ruling of the D.C. Circuit Court in January.
The 3rd Circuit case centered on decisions the NLRB made on the authority of three members including Craig Becker, who was appointed by the president on March 27, 2010, while the Senate was adjourned for two weeks.
The case was brought by a New Jersey nursing and rehabilitation center whose nurses were allowed to form a union by one such NLRB decision. The facility, New Vista, contended that the board’s decision was invalid because it did not have enough members active when the decision was issued because the naming of Becker to the board was not a valid recess appointment.
The NLRB must have three members participate in a decision for it to be valid, and the court found that because Becker was not appointed during a break between sessions of Congress, he was not a valid member of the board and thus invalidated the NLRB’s orders.
The opinion, written by Judge D. Brooks Smith, said the recess clause of the Constitution should be read not just to give the president executive power, but also to preserve the “advice and consent” role of the Senate.
The Obama administration has petitioned the Supreme Court to overturn the first DC Circuit ruling, but it is highly doubtful they will.