President Obama violated the Constitution when he circumvented the Senate to fill three vacancies on the National Labor Relations Board (“NLRB”) in January 2012. The U.S. Court of Appeals for the D.C. Circuit ruled that the President’s appointments were invalid from the inception for two reasons: i) the appointments were not made during “the Recess” of the Senate; and ii) the vacancies did not “happen” during “the Recess.” Therefore, the President did not have the constitutional authority to make these recess appointments to the NLRB.
The NLRB is a five-member board that requires at least a three-member quorum to act. The decision renders the President’s appointment of Sharon Block, Richard Griffin, and Terrence Flynn (who resigned after his appointment) invalid. This leaves Chairman Mark Pearce as the only properly installed member of the NLRB and effectively obviates the Board’s power to act because it is without a quorum.
The decision also threatens the validity of hundreds of NLRB decisions issued over the past year, as the D.C. Circuit’s ruling means that the NLRB has lacked a quorum since January 3, 2012. Under the U.S. Supreme Court’s 2010 decision in New Process Steel, Board decisions issued when the NLRB lacks a three-member quorum are invalid.
Undaunted, Chairman Pearce responded to the court ruling by issuing a statement that the NLRB would continue its “important work.” The White House also indicated that the D.C. Circuit’s ruling would likely be challenged. Although the D.C. Circuit’s ruling is the first appellate decision regarding the validity of the President’s NLRB recess appointments, cases raising the same issue are currently pending before other circuits.
Given the importance of the issue, it is anticipated the case will be taken up by the U.S. Supreme Court. In fact, the D.C. Circuit’s logic would render invalid many prior recess appointments by both Republican and Democratic presidents; the case therefore presents a critical issue regarding the separation of powers between the executive and legislative branches.
Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you (an ‘engagement letter’).
By clicking the ‘ACCEPT’ button, you agree that we may review any information you transmit to us. You recognize that our review of your information, even if you submitted it in a good faith effort to retain us, and, further, even if you consider it confidential, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you. Please click the ‘ACCEPT’ button if you understand and accept the foregoing statement and wish to proceed.