Unconstitutional Appointments

Second appeals court strikes down Obama NLRB appointments

Source: Flickr user SalFalko


A second federal appeals court has struck down President Obama’s 2012 recess appointments to the National Labor Relations Board as unconstitutional.

The Third Circuit Court of Appeals, which covers parts of Delaware, New Jersey, and Pennsylvania, ruled 2-1 that President Obama violated the constitution’s separation of powers when he recess-appointed Democrat Craig Becker to the NLRB in March 2010.

"We hold that the ‘the Recess of the Senate,’ in the Recess Appointments Clause refers to only intersession breaks," the ruling states. "As a consequence, we conclude that the National Labor Relations Board panel below lacked the requisite number of members [three] to exercise the Board’s authority."

The ruling stems from a disputed union election that occurred at a New Jersey nursing home. The NLRB denied the nursing home’s motion that the board illegitimately forced the company to recognize unionized managers. The Appeals Court ruled that the board did not have the authority to dismiss the motion because of the recess appointments.

The Third Circuit is not the first federal court to declare Obama’s recess appointments to the NLRB unconstitutional. The D.C. Circuit Court of Appeals overturned an NLRB ruling in January because Obama unconstitutionally recess appointed Democrats Sharon Block and Richard Griffin while the Senate was still in session.

The D.C. Circuit is now considering a number of appeals to other NLRB rulings putting 910 rulings the board has issued since the recess appointments at risk of being overturned. The board has continued to operate in the face of the legal challenge, issuing more than 200 additional rulings since the D.C. Circuit declared it unconstitutional.

The House of Representatives passed a package of bills to prevent further board rulings until the Senate has confirmed three nominees. President Obama vowed to veto the legislation.

The Third Circuit ruling came the same day the Senate Health, Education, Labor, and Pensions Committee took up the nominations of Griffin and Block, as well as three other nominees, to sit on the board. The board members argued that the D.C. Circuit stood alone in its decision and that they would not step down until the Supreme Court weighed in on the legitimacy of the appointments.

"The NLRB has functioned in the wake on constitutional challenges [in the past]," Democratic board Chairman Mark Gaston Pearce told the committee, referring to a Depression Era challenge to board authority. "We owe it to the public to continue to work."

Ranking Republican Sen. Lamar Alexander (R., Tenn.) informed the committee of the Third Circuit’s decision as he explained his opposition to the candidates.

"The D.C. Circuit isn’t the only one; the Third Circuit this morning issued an opinion agreeing with them," he said. "This point of disturbing end-arounds around congress is why I cannot support the nominations of these two [Block and Griffin]."

Labor watchdogs expressed support for the judges’ decisions, adding that it builds momentum for the upcoming Supreme Court case.

"Today, another federal appeals court has invalidated one of President Barack Obama’s so-called ‘recess appointments’ to the National Labor Relations Board," said Mark Mix, president of the National Right to Work Foundation. "As National Right to Work Foundation attorneys have argued in several courts, the Obama ‘recess appointments’ have clearly violated the U.S. Constitution. Today’s decision is a victory for independent-minded workers who have received unjust treatment at the hands of the pro-forced unionism NLRB over the last few years."

The federal government has appealed the D.C. Appeals Court ruling to the Supreme Court.

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He lives in Alexandria, Va, with his wife and three daughters. His Twitter handle is @FBillMcMorris. His email address is mcmorris@freebeacon.com.

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