A Second Court Rules That Another NLRB “Recess Appointment” by President Obama’s Is Unconstitutional
‘For the second time this year, an appeals court reaffirmed what Republicans and job creators around the country have been saying: the President’s attempt to circumvent the Senate with a supposed ‘appointment’ to the NLRB was made outside the law’
WASHINGTON, D.C. – The U.S. Circuit Court of Appeals for the 3rd Circuit today ruled that a so-called “recess appointment” by President Obama to the National Labor Relations Board (NLRB), Craig Becker, was invalid. The Court ruled (2 to 1) that a “Recess” of the Senate applies only to inter-session recesses of the Senate, not to intra-session recesses of the Senate. The court agreed with the D.C. Circuit in the Noel Canning case.
“For the second time this year, an appeals court reaffirmed what Republicans and job creators around the country have been saying: the President’s attempt to circumvent the Senate with a supposed ‘recess appointment’ to the NLRB was made outside the law,” Senate Republican Leader Mitch McConnell said.
In its ruling today (NLRB v. New Vista Nursing and Rehabilitation), the Court found that the President’s action resulted in a nominee being “invalidly recess appointed to the Board during the March 2010 intrasession break” and therefore “vacate[d] the [NLRB’s] orders” in the New Vista case.
The Court said the Administration’s argument that the Senate is in recess for purposes of the Recess Appointments Clause even when it is meeting regularly “was incompatible with the Constitution,” and “would eviscerate the [Constitution’s]divided-powers framework.” If the Administration’s view of the Recess Appointment Clause were to prevail, the Court said, “then the President could circumvent the Senate’s constitutional role simply by waiting until senators go home for the evening.”
Given that the Senate had passed legislation that the Administration wanted during the same type of session that the Administration now says doesn’t count, the Court also noted that the Administration’s position would lead to absurd results: “Holding that the Senate is unavailable during these sessions requires a definition of availability that allows the counterintuitive situation in which the Senate is available to enact legislation while simultaneously unavailable to provide its advice and consent.”
“Last year, the President made an unprecedented power grab by placing political allies at a powerful federal agency without even trying to obtain the Senate’s advice and consent. Earlier this year, the U.S. Court of Appeals for the D.C. Circuit correctly struck down the unlawful, so-called ‘appointments’ to the NLRB,” Sen. McConnell said, “It’s time for the unlawfully appointed nominees to step down.”