Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
July 29, 2015

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.

The decision out of the 3rd Circuit only furthers the disagreement and perhaps increases the likelihood that the Supreme Court will intervene to create a uniform standard.

NLRB Nominees Also Face Senate Scrutiny

The ongoing dispute about presidential appointment power also resurfaced Thursday morning at a Senate hearing over the NLRB, with ranking member Lamar Alexander, R-Tenn., announcing he would oppose Senate confirmation of two nominees currently holding recess appointments to the board.

“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.

Comments (33)

Leave a Comment

Your email address will not be published.

author email

  1. Anonymous

    June 27, 2015
    5:47 a.m.

    Good info. Lucky me I reach on your website by accident, I bookmarked it.

  2. Anonymous

    July 2, 2015
    12:13 p.m.

    Hello, i think that i saw you visited my website thus i came to “return the favor”.I am trying to find things to enhance my website!I suppose its ok to use some of your ideas!!

  3. Anonymous

    July 4, 2015
    6:30 a.m.

    Thanks for any other great post. Where else could anybody get that kind of information in such a perfect way of writing? I’ve a presentation next week, and I’m on the search for such information.

  4. Anonymous

    July 4, 2015
    6:12 p.m.

    When I originally commented I clicked the -Notify me when new feedback are added- checkbox and now each time a remark is added I get four emails with the identical comment. Is there any approach you possibly can take away me from that service? Thanks!

  5. Anonymous

    July 6, 2015
    6:59 p.m.

    Enjoyed reading this, very good stuff, thankyou. “The fox knows many things, but the hedgehog knows one big thing.” by Archilocus.

  6. Anonymous

    July 7, 2015
    9:13 a.m.

    Hi my family member! I wish to say that this article is amazing, great written and come with almost all significant infos. I would like to peer extra posts like this.

  7. Anonymous

    July 7, 2015
    5:15 p.m.

    I think other website proprietors should take this site as an model, very clean and fantastic user friendly style and design, as well as the content. You’re an expert in this topic!

  8. Anonymous

    July 9, 2015
    9:24 a.m.

    This design is incredible! You definitely know how to keep a reader amused. Between your wit and your videos, I was almost moved to start my own blog (well, almost…HaHa!) Fantastic job. I really loved what you had to say, and more than that, how you presented it. Too cool!

  9. Anonymous

    July 11, 2015
    10:23 a.m.

    F*ckin’ awesome things here. I am very glad to see your article. Thanks a lot and i’m looking forward to contact you. Will you kindly drop me a mail?

  10. Anonymous

    July 13, 2015
    2:32 p.m.

    Hey, you used to write excellent, but the last several posts have been kinda boringK I miss your tremendous writings. Past several posts are just a little out of track! come on!

  11. Anonymous

    July 13, 2015
    4:02 p.m.

    Great blog here! Also your site loads up fast! What web host are you using? Can I get your affiliate link to your host? I wish my website loaded up as fast as yours lol

  12. Anonymous

    July 13, 2015
    6:09 p.m.

    I like this web blog very much so much superb information.

  13. Anonymous

    July 13, 2015
    7:04 p.m.

    whoah this blog is wonderful i love reading your articles. Keep up the great work! You know, a lot of people are searching around for this info, you can aid them greatly.

  14. Anonymous

    July 13, 2015
    8:26 p.m.

    You could definitely see your expertise within the work you write. The sector hopes for more passionate writers such as you who aren’t afraid to say how they believe. Always follow your heart.

  15. Anonymous

    July 14, 2015
    12:28 a.m.

    That is the fitting blog for anyone who wants to search out out about this topic. You understand so much its almost hard to argue with you (not that I actually would want…HaHa). You positively put a brand new spin on a subject thats been written about for years. Nice stuff, just great!

  16. Anonymous

    July 14, 2015
    1:30 a.m.

    That is the proper weblog for anybody who desires to find out about this topic. You understand a lot its nearly laborious to argue with you (not that I truly would need…HaHa). You positively put a new spin on a subject thats been written about for years. Great stuff, simply great!

  17. Anonymous

    July 17, 2015
    5:51 a.m.

    Superb post however , I was wanting to know if you could write a litte more on this topic? I’d be very grateful if you could elaborate a little bit further. Cheers!

  18. Anonymous

    July 17, 2015
    6:41 a.m.

    naturally like your website but you need to test the spelling on several of your posts. Many of them are rife with spelling problems and I to find it very bothersome to tell the truth however I’ll definitely come back again.

  19. Anonymous

    July 18, 2015
    6:16 a.m.

    Heya! I just wanted to ask if you ever have any issues with hackers? My last blog (wordpress) was hacked and I ended up losing a few months of hard work due to no backup. Do you have any methods to stop hackers?

  20. Anonymous

    July 18, 2015
    8:57 a.m.

    whoah this blog is magnificent i like reading your articles. Keep up the great work! You already know, lots of individuals are hunting around for this information, you could help them greatly.

  21. Anonymous

    July 19, 2015
    8:52 a.m.

    Aw, this was a really nice post. In concept I wish to put in writing like this additionally – taking time and precise effort to make a very good article… however what can I say… I procrastinate alot and not at all seem to get something done.

  22. Anonymous

    July 20, 2015
    1:55 p.m.

    Thank you for the good writeup. It in fact was a amusement account it. Look advanced to far added agreeable from you! However, how can we communicate?

  23. Anonymous

    July 20, 2015
    7:01 p.m.

    naturally like your web-site but you have to check the spelling on several of your posts. Several of them are rife with spelling problems and I find it very bothersome to tell the truth nevertheless I’ll certainly come back again.

  24. Anonymous

    July 21, 2015
    3:30 a.m.

    It¦s really a cool and useful piece of information. I¦m satisfied that you shared this helpful info with us. Please stay us informed like this. Thank you for sharing.

  25. Anonymous

    July 24, 2015
    8:29 a.m.

    Some really interesting information, well written and broadly user genial.

  26. Anonymous

    July 24, 2015
    1:37 p.m.

    The other day, while I was at work, my cousin stole my apple ipad and tested to see if it can survive a 30 foot drop, just so she can be a youtube sensation. My iPad is now destroyed and she has 83 views. I know this is completely off topic but I had to share it with someone!

  27. Anonymous

    July 24, 2015
    8:02 p.m.

    I used to be recommended this website by means of my cousin. I’m no longer sure whether or not this publish is written by him as nobody else understand such specified approximately my difficulty. You’re wonderful! Thanks!

  28. Anonymous

    July 25, 2015
    5:17 a.m.

    This internet site is my intake, rattling wonderful design and perfect content material.

  29. Anonymous

    July 25, 2015
    9:34 a.m.

    Some times its a pain in the ass to read what blog owners wrote but this website is very user friendly! .

  30. Anonymous

    July 25, 2015
    8 p.m.

    Thank you for sharing superb informations. Your web site is so cool. I’m impressed by the details that you have on this website. It reveals how nicely you understand this subject. Bookmarked this web page, will come back for extra articles. You, my pal, ROCK! I found just the info I already searched all over the place and just could not come across. What an ideal web-site.

  31. Anonymous

    July 26, 2015
    12:12 a.m.

    Hello! I’m at work browsing your blog from my new apple iphone! Just wanted to say I love reading your blog and look forward to all your posts! Carry on the outstanding work!

  32. Anonymous

    July 28, 2015
    10:27 a.m.

    When I initially commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added I get four e-mails with the same comment. Is there any way you can remove people from that service? Appreciate it!

  33. Anonymous

    July 28, 2015
    1:58 p.m.

    I have not checked in here for some time since I thought it was getting boring, but the last few posts are good quality so I guess I¦ll add you back to my everyday bloglist. You deserve it my friend :)

Sign In

Forgot password?



Receive daily coverage of the people, politics and personality of Capitol Hill.

Subscription | Free Trial

Logging you in. One moment, please...