Court Invalidates NLRB Recess Appointments

In an explicit 3-0 decision in the case, Noel Canning v. National Labor Relations Board, on Jan. 25, the U.S. Court of Appeals for the District of Columbia denied President Obama’s recess appointments to the National Labor Relations Board stating “Because we agree that the appointments were constitutionally invalid and the Board therefore lacked a quorum, we grant the petition for review and vacate the Board’s order.”

Specifically rejecting the Obama Administration’s Justice Department Office of Legal Counsel argument that the President has the authority to determine when the Senate is or is not in “recess” for the purpose of making recess appointments, the Court determined “This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers . . . An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice and consent requirement.”

While an extremely significant decision, it is expected to be appealed and challenges will likely be filed in the interim against the Board for other decisions made by the recess appointees.

National Association of Wholesaler-Distributors (NAW) and The Coalition for a Democratic Workplace (CDW) have been involved in this case from the beginning and accept this ruling as a huge victory.

Click here to read the Court’s opinion.

 

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