A three-member panel of the District of Columbia Court of Appeals has ruled that President Obama’s three recess appointments to the National Labor Relations Board were unconstitutional.
On January 4, 2012, the President appointed the three members, purportedly pursuant to the Recess Appointments Clause of the Constitution, which allows the President to make such appointments without the advice and consent of the Senate, if the Senate is in “Recess.” NLRB members are appointed by the President to five-year terms, usually with Senate consent. The NLRB is a five-member panel that acts as a quasi-judicial body. At the time of the President’s appointments, the NLRB had only 2 members. The President’s three appointments were meant to bring the NLRB up to full strength.
The case was before the court on an appeal filed by an employer of an adverse decision against it by a three-member panel of the NLRB. The employer argued that the NLRB’s decision was invalid because the NLRB lacked the proper quorum. (The Board cannot act without a quorum of three members). The employer claimed that the NLRB only had two valid members (not five) because the President’s three appointments were made while the Senate was merely in an inter-session break, and not in a full recess as defined by the Constitution. The employer argued that the term “the Recess” in the Recess Appointments Clause refers to the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the President.
The NLRB contended that the Recess Appointments Clause gave the President the power to fill vacancies that may happen during any break in the Senate’s business, even if the Senate was otherwise in a continuing session. The NLRB failed, however, to define how long a break was necessary before the President could validly make appointments under the Constitution.
The Court did not mince words. It stated that to adopt the NLRB’s position would “wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause.” The Court found, in short, that the Constitution’s appointments structure — the general method of advice and consent modified only by a limited recess appointments power when the Senate simply cannot provide advice and consent — makes clear that the Framers used “the Recess” to refer only to the recess between sessions, and not to breaks that merely occurred during sessions.
Why is this case important to you? The NLRB is the quasi-judicial body over disputes involving the National Labor Relations Act (the Act), which protects employees and their concerted activity involving wages and other working conditions. The Act applies to most private workplaces, even those that are union free. This case casts doubt on hundreds of decisions the NLRB has made in the past year, ranging from enforcement of collective-bargaining agreements to rulings on the rights of workers to use social media.