Court rejects recess appointments to labor board

From the NY Times

A federal appeals court ruled on Friday that President Obama violated the Constitution when he made three recess appointments to the National Labor Relations Board last January.

The three-judge panel of the United States Court of Appeals for the District of Columbia Circuit held that Mr. Obama did not have the power to bypass the Senate and make the appointments.

The Obama administration has repeatedly asserted that the appointments to the N.L.R.B. were legitimate because he made them when the Senate was away during a 20-day holiday recess a year ago. The appeals court strongly disagreed, ruling that the Senate was technically in session because it was gaveled in and out every few days as part of a tactic that created “pro forma” sessions.

Both Republican and Democratic lawmakers have used the tactic of “pro forma” session to block presidents from making recess appointments.

The court’s decision also raises doubts about the legitimacy of Mr. Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau.

Mr. Cordray’s appointment, which is being challenged in a separate lawsuit, was also made last January under the same recess circumstances. On Thursday, Mr. Obama announced he was again nominating Mr. Cordray to that position, voicing hope that Senate Republicans would not block confirmation this time, as they did with the previous nomination of Mr. Cordray.

Many Republicans and business associations have derided the labor board under Mr. Obama, saying it has become a tool of organized labor. But many Democrats and labor unions have responded that Mr. Obama’s appointments had merely restored ideological balance to the board after it had favored business interests under President George W. Bush.

The Obama administration is likely to appeal Friday’s ruling to the United States Supreme Court.

But if the ruling is upheld, it would invalidate scores of decisions that the labor board has made since last January.

The board would be left with just one validly appointed member — its chairman, Mark Gaston Pearce — who was confirmed by the Senate. Under a 2010 Supreme Court decision, the labor board, which has five seats, is authorized to issue decisions only when it has three or more sitting members.

On Jan. 4, 2012, Obama made the three recess appointments to the labor board. They were two Democrats — Deputy Labor Secretary Sharon Block; Richard Griffin, general counsel to the operating engineers union — and one Republican, Terence Flynn, a counsel to an N.L.R.B. member. Mr. Flynn resigned from the board last May after he was accused of leaking materials about the N.L.R.B.’s internal deliberations.

The three federal judges who issued Friday’s ruling were all Republican appointees. The decision was written by David B. Sentelle, an appointee of President Ronald Reagan who is chief judge of the federal appellate court in Washington, D.C.

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