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In major setback for Obama, court rules NLRB appointees unconstitutional

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Politics,Beltway Confidential,Sean Higgins

A federal appeals Court today ruled that President Obama overstepped his authority when he used the recess appointment process to place three people on the National Labor Relations Board a year ago. The president used the maneuver to circumvent the Senate confirmation process but a unanimous three-judge panel said the action was unconstitutional.

The ruling is a sharp rebuke to the president, who has increasingly sought to use executive power to bypass Congress entirely. Recess appointments are intended for emergency situations when Congress is not in session, but Obama has used them to install officials during brief breaks in congressional activity.

The NLRB appointments were made on January 4, 2012. Senate Republicans cried foul, arguing the Senate wasn’t even technically in recess. Most filed an amicus brief in the case challenging the appointments, Noel Canning V. National Labor Relations Board. The Appeals Court basically agreed with the Republicans.

The decision will effectively shut the NLRB down, because only the Chairman, Mark Gaston Pearce would remain as a constitutionally-appointed member.  The two remaining NLRB appointees, Sharon Block and Richard Griffin, both recess appointees, would have to either submit to the Senate confirmation process or step down. (A third appointee, Terrence Flynn, has since stepped down.) The five-member board requires at least three members to provide a quorum and act.

It also potentially puts several NLRB actions over the last year in legal jeopardy. Opponents will be able to argue the board was not properly constituted at the time it issue its ruling.

“The Chamber has argued that these NLRB appointments were invalid from the start, and now the court has agreed.  This should void a number of harmful decisions that have been made over the past year, although some of the worst Board rulings, such as micro unions, still need to be rolled back,” said Glenn Spencer, vice president of the Chamber of Commerce’s Workforce Freedom Initiative.

In a statement emailed to reporters, National Right To Work Foundation President Mark Mix said:

“As a result (of the ruling), the Board has lacked a quorum since January 3, 2012, and under a U.S. Supreme Court precedent established in 2010, the court’s ruling invalidates the Board’s biased and decidedly pro-Big Labor rulings since that time.  The court’s decision in Noel Canning is a victory for independent-minded workers who have received unjust treatment at the hands of the pro-Big Labor NLRB and will hopefully serve as a persuasive example to other federal courts deciding on the validity of Obama’s purported recess appointments.”

The  ruling also puts other Obama recess appointees in jeopardy. As the AP notes:

The ruling also throws into question Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, also made under the recess circumstance, has been challenged in a separate case.

NLRB spokeswoman Nancy Cleeland had no comment on the court’s ruling.

Read the ruling here.

 

 

 

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Author:

Sean Higgins

Senior Writer
The Washington Examiner