Second Appeals Court Rules Obama Recess Appointments Unconstitutional

The U.S. Court of Appeals for the Third Circuit has ruled that President Obama’s recess appointments to the National Labor Relations Board are unconstitutional which therefore tosses out any decisions those Board appointees made.

The Philadelphia-based court is the second judicial body to so rule. In January, the D.C. Circuit reached the same general conclusion, i.e. that presidential recess appointments — i.e., those officials who have not received an up-or-down vote in the US Senate — are only valid under the Constitution if they are made when the Senate goes out of operation at the end of the session rather than during frequent breaks it takes throughout the legislative session.

Article II, Section 2, of the Constitution provides that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

All the legal wrangling revolves around a technical interpretation of “Recess of the Senate.”

In this case, a New Jersey nursing home involved in a labor dispute with a group of nurses challenged an adverse ruling from the union-friendly Labor Board on the grounds that there was no legally required quorum. Three members rendered the disputed decision, all of whom were recess appointees, including Craig Becker, who now works for the AFL-CIO. Recess appointees have not gone through the Senate confirmation process. “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.” At least three members of the five-member board must participate in a decision for it to be legally binding.

In a 157-page decision that cited legislative history, the Federalist Papers, and the Constitution itself, the appellate court in a 2-1 opinion determined that Becker’s appointment was illegal and therefore the underlying New Vista decision was null and void because the agency lacked a minimum three-member quorum. The court ruled that recess appointment clause in the Constitution refers only to so-called intersession breaks, i.e., those breaks between sessions, rather than pro forma sessions or other temporary adjournments of Senate business during the legislative session. The court added that its decision preserves the checks and balances between the executive and legislative branches by limiting the president’s unilateral appointment authority.

This latest ruling, along with the prior D.C. Circuit opinion, throws hundreds of decisions made by Obama recess appointees into potential legal limbo. It also suggests that the Obama recess appointment of the high-profile Consumer Financial Protection Bureau director — and any regulations that he may have issued — may also be unconstitutional. The D.C. Circuit ruling is on appeal to the U.S. Supreme Court, however.

Earlier this month, the D.C. Circuit threw out an NLRB rule that would have required private sector employers to post a sign notifying workers of their rights to join a union on free speech grounds.