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October 14, 2015

NLRB Recess Picks ‘Constitutionally Infirm,’ Another Court Rules

One day after senators struck a deal to replace two contested recess appointees to the National Labor Relations Board and stay away from the “nuclear option,” a third federal appeals court said the appointments weren’t valid.

This time, the federal appeals court based in Richmond, Va., declined to enforce NLRB orders, saying that three recess appointments to the NLRB were improper.

“We conclude that the President’s three January 4, 2012 appointments to the Board are constitutionally infirm, because the appointments were not made during ‘the Recess of the Senate.’ Accordingly, we deny the Board’s applications for enforcement of its orders,” two members of a three-judge panel from the Fourth Circuit Court of Appeals held Wednesday.

Once again a federal appeals court has applied the Constitution’s recess appointments clause narrowly, but the three judges involved have a fascinating debate that makes reading the opinion, a concurrence and a dissent an interesting read, outlining the vexing issues underlying the legal case.

Senate Majority Leader Harry Reid said Tuesday that he thought the NLRB appointments would eventually be declared valid by the Supreme Court, even though they came about when the Senate was at least nominally in pro-forma session every three days.

“The decision reached by the D.C. Court of Appeals was foisted upon the American people because we had some bad judges,” the Nevada Democrat said on MSNBC. “I have confidence, as much as I disagree with the decisions of the Supreme Court most of the time, I feel that the facts and law are on our side.”

Senate Republicans retained Miguel Estrada as outside counsel to represent them opposing the veracity of the recess appointments in a similar case before the D.C. Circuit Court of Appeals. The Philadelphia-based Third Circuit has said likewise.

The D.C. case goes before the Supreme Court next term.

Wednesday’s opinion and concurrence take the constitutional language rather literally to apply to intersession recesses, while the dissent raises another question: the possibility that the House could block recess appointments.

“It grants the House a veto over recess appointments, a power nowhere to be found in the Constitution, and grants the Senate — through the use of a procedural artifice unworthy of the world’s greatest deliberative body — unfettered power to prevent the President from making recess appointments to fill up important offices,” wrote Judge Albert Diaz, an appointee of President Barack Obama.

The author of the opinion, Senior Judge Clyde H. Hamilton, and the concurrence, Allyson Kay Duncan, were Republican appointees.

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