The U.S. Court of Appeals for the District of Columbia recently ruled that President Obama’s recess appointments to the National Labor Relations Board were unconstitutional because the Senate was not in “recess” at the time the appointments were made. You can read a copy of the Court’s opinion here.
This means that from January 4, 2012, the NLRB did not have a quorum and did not have the authority to decide any of the cases it did decide of the past year. So, all of those rulings are invalid.
The court noted if President Obama’s “recess” appointments were allowed to stand, the President would have free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even with the Senate is in session and he is merely displeased with its inaction.
Of course, the question is, “What now?” It is likely that the court’s ruling will be appealed to the United States Supreme Court. If the ruling is affirmed, all of the decisions issued since January 4, 2012, will have to be withdrawn until the NLRB has enough members to act. In the meantime, the NLRB issued a press release saying that it would continue its important work and the parties who are before the NLRB should expect careful consideration and resolution of their cases.
These are certainly interesting times. We’ll keep you updated with new blog posts as this matter works its way through the court system.