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.

Democrats Sharon Block and Richard Griffin have served on the board since January 2012. Obama used his recess power to appoint them while the Senate was still in pro forma session, hoping to spare them a potentially tough confirmation battle. The D.C. Circuit Court of Appeals declared their presence on the board unconstitutional in January 2013.

“President Obama … made recess appointments while the Senate was not in recess; this was unprecedented,” said ranking member Lamar Alexander (R., Tenn.). “There is a troubling lack of respect for the constitutional balance of powers and respect for the Senate’s role of advise and consent.”

The board ignored the ruling and has ruled on 206 labor disputes since January. The D.C. Circuit Court, which handles NLRB appeals, has been overwhelmed with cases challenging the board’s authority, which could lead the courts to throw out those decisions as well as the 910 rulings issued since the recess appointments. The government has appealed the case to the Supreme Court.

While acknowledging their expertise, Alexander said he could not support Block and Griffin’s nominations.

“My problem is not with their qualifications, my problem is they decided to keep issuing rulings … after the court said they were unconstitutional,” he said.

Block and Griffin defended their decision when asked by Committee Chairman Tom Harkin (D., Iowa) why they did not resign their posts.

“Since the Supreme Court has not yet ruled, I felt it was very important to do the very important work I took an oath to do,” Griffin said.

Block added that the workers she encountered during her tenure on the board motivated her.

“The public we serve relies on us … to protect the institution of the board; I thought it was incumbent upon me to continue,” Block said.

Alexander rejected the argument that a non-functioning board would prevent workers and companies from resolving disputes. He pointed out that the Appeals Court decision did not prevent NLRB regional offices from issuing decisions nor did it stop the NLRB from carrying out administrative duties, such as certifying union elections.

“You have to balance the confusion when possibly hundreds of decisions could be vacated,” he said.

The House of Representatives passed a package of bills that would prevent the board from issuing future rulings in April. Obama vowed to veto the legislation and it is not expected to pass the Democrat-controlled Senate.

Block and Griffin did not appear alone at Thursday’s hearing. HELP committee senators are considering a full slate of five nominees to the board.

Obama nominated Republicans Harry Johnson III and Philip Miscimarra in April.

“He’s trying to push through the package because that’s the only way to get them through,” one Senate aide told the Washington Free Beacon on the condition of anonymity.

Sen. Patty Murray (D., Wash.) criticized the package approach of confirmations as a sign of dysfunction, but expressed support for the nominees.

“That is no way to run a country,” she said. “I have some concerns about some of the individuals … but I hope we can move them through quickly.”

She asked the candidates if they approved of the package approach. Griffin, Block, and Democratic Chairman Mark Gaston Pearce said yes. The Republicans called the Democrats qualified, but declined to “instruct the Senate on how it conducts its business.”

“If I was a senator, I would confirm me,” Johnson said to laughs from the lawmakers.

Harkin criticized Republicans for “political gameplaying … and relentless filibustering of nominees.” He praised Pearce, Block, and Griffin.

“These attacks on the board have impacted real people in real life,” he said. “These three people have been dedicated [to serve] … even in tumultuous times.”

Sen. Tim Scott (R., S.C.) said there are serious concerns about the board’s actions over the past year, pointing out that it overturned decades of precedent to tilt the scales to labor unions. He pointed to the board’s decision to force employers to continue funneling union dues from employees to labor groups even after contracts expired. The decision overturned more than 40 years of precedent.

“This seems to be a board about picking winners and losers,” Scott said. “The board has become an activist board … instead of a neutral body.”

The department’s Occupational Safety and Health Administration (OSHA) issued a February guidance letter made public in April saying that labor union officials could participate in safety inspections at the request of an employee even if the employer is non-union.

“A person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walkaround representative so long as the individual has been authorized by the employees to serve as their representative,” wrote OSHA Deputy Assistant Secretary Richard E. Fairfax.

OSHA conducts thousands of inspections on workplaces across the country every year, focusing particularly on the manufacturing sector. Employees are entitled to select an observer to accompany OSHA investigators on the inspections.

While union shops often select stewards to represent them, non-union workers select an employee to join the “walkaround.” The new OSHA interpretation would allow outside parties, such as union representatives, to enter the workplace for the first time.

Bill Principe, an attorney and workplace safety expert at Constangy, Brooks, & Smith, called the move a “very significant departure from 40 years of [OSHA] practices,” pointing to the fact that the regulation “specifically says that the representative shall be an employee.”

“I’ve been doing this a while and I’ve never seen a situation where an OSHA officer or employee thought about bringing in someone from outside [the company],” he said. “This interpretation came out of left field.”

Some labor watchdogs say that the interpretation is a Trojan horse, intended to help union officials gain entry into a workplace they would normally be excluded from without majority support from workers.

“They’re carrying the water of the big union bosses,” said Glenn Taubman, an attorney with the National Right to Work Legal Defense Foundation. “They know that union organizing is in decline and are trying to help the unions get in any way they can. It’s part of the same regulatory scheme of the Obama administration to strangle employers and reward unions by making it easier to organize.”

Fairfax issued the interpretation in response to a clarification request from a representative with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.

The regulation allows for third party experts, such as industrial hygienist or safety engineers to visit the site, but no mention is made of labor groups. Fairfax couched his interpretation in vague terms and extended the third-party language to unions.

Principe, the labor attorney, said such queries are common, but not solicited “without [the questioner] already knowing the answer.”

“We’re not really talking about hygienists; that’s not the intent from a practical perspective. It’s a union rep asking,” he said. “The letter is pretty straightforward.”

Fairfax has since retired, according to an OSHA official. He could not be reached for comment.

OSHA spokesman Jesse Lawder denied that the interpretation departed from previous understanding of labor regulations because the field operations manual allows for third party inspections.

“OSHA expects that this clarification will have little impact,” he said. “Having a walkaround representative is an important, longstanding right for workers to get an effective and thorough inspection.”

Principe and other labor attorneys disagreed, pointing out that such language has referred to union shops, rather than non-union workplaces.

Principe said that the new interpretation’s vagueness could “cause lengthy delays” on inspections, especially the hundreds of surprise visits OSHA makes every year.

The letter does not make clear how many employees are required to request a union representative before one must be called. The OSHA investigator would then have to make a spot decision about how to proceed or call regional or national attorneys to decipher the rule.

“Presumably under this interpretation, any employee could say ‘well I want a union rep to accompany OSHA,’ even if it’s just on behalf of himself,” he said.

Employers who want to avoid union proselytizing through safety inspections would be left with little recourse other than rejecting a safety inspection and asking OSHA investigators to obtain a warrant before entering the premises with union officials, according to Principe.

OSHA does not have to post its response to letters on the website, according to Principe, and when it does, “it’s making a point.” The department hammered that point home when it edited a 2003 OSHA advisory that presented a contradictory, but traditional, interpretation of walkarounds.

“This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only,” the site now says.

Principe’s Constangy, Brooks, & Smith colleague, labor relations expert David Phippen, said the issue extends beyond the practical implications on an inspection site. The interpretation could allow union officials onto a site without having the approval of a company’s workers.

“OSHA avoids the main point that that representative has never been elected by majority of employees in a proper NLRB election,” he said. “It’s sticking their nose into something they don’t have representative status in.”

Three companies had sued the NLRB on the grounds that it did not have the authority to rule on labor disputes. The motion of consolidation issued by the judges will combine the suits and allow them to move forward with oral arguments scheduled for September.

Glenn Taubman, a lawyer with the National Right to Work Legal Defense Foundation, hailed the victory as another step forward to restoring balance in labor disputes.

“The [employer] petitions will shut the board down in these respective cases,” he said. “It won’t necessarily shut down the board entirely, but it provides a roadmap for everyone to get the NLRB out of their cases.”

The NLRB serves as an arbiter in labor disputes and oversees labor practices and unionism throughout the country.

Numerous legal challenges to the board’s ability to issue rulings emerged after the D.C. Court of Appeals ruled in January that President Barack Obama’s recess appointments of union lawyers Richard Griffin and Sharon Block were unconstitutional. The NLRB has pledged to continue issuing rulings until the Supreme Court weighs in on the issue.

The board’s defiance drew harsh criticism from Republicans on Capitol Hill.

The House of Representatives passed legislation to shut down the board in April. That bill is unlikely to pass the Senate and would likely be vetoed by Obama.

Taubman said the D.C. circuit provides the quickest route to halting the operation of the constitutionally dubious board. He praised the court for “no longer sitting on their hands, waiting for the Supreme Court.”

“This law was settled in the D.C. circuit,” he said. “It’s your decision, it’s good law issued by your circuit, now it’s time to take your decision seriously and enforce it.”

The ruling came the same day a separate D.C. appeals court panel tossed out a NLRB ruling that forced employers to post notices informing workers of their right to unionize while leaving out information about their right to opt out of union dues. The NLRB decided companies that did not put up the signs could be charged with unfair labor practices and punished by the board. The court ruled that the punishment infringed on an employers’ freedom of speech.

“The court decided that the right to free speech includes the right to be silent, in this case by not putting up a sign; the government was trying to force companies to speak [the government’s] views,” said David Phippen, a labor attorney with Constangy, Brooks, and Smith. “NLRB had never done anything like that to all employers before.”

The NLRB had unilaterally decided that it had the regulatory authority to order nearly every American workplace to put up the posters. Two of the three appeals court justices questioned this authority.

“Congress never gave [the NLRB] the power to do this,” Taubman said. “The posting rule was just a way to get more employees into the unions at the behest of Obama and the big union bosses.”

Taubman said the NLRB’s inability to successfully defend their rulings in appeals courts, as well as the legal challenges to its authority, cast serious doubts on its integrity.

“There is a huge, huge legitimacy problem here; every decision is suspect,” he said. “Everybody knows there’s a cloud hanging over this board; it’s never been held in lower esteem.”

“This bill will constrain [executive] power, there is divided power in government and that’s the message we sent,” Rep. Phil Roe (R., Tenn.) said. “I would have liked the Republicans and Democrats to come together on this because the Democrats won’t always have the presidency.”

“The [court] has already ruled once that if there’s not [three valid board members] they will throw out the rulings and that costs the parties and the government a lot,” Roe said. “Labor needs the certainty, management needs certainty and the best way to do that is tell the board stop until we have a review.”

A D.C. Appeals Court declared in January President Barack Obama’s recess appointments of union attorneys Sharon Block and Richard Griffin unconstitutional because the Senate was still in pro forma session.

The board and the administration have remained defiant, with NLRB Chairman Mark Gaston Pearce vowing to continue issuing rulings on labor disputes, while the administration pursues an appeal.

The proposal, a block of several pieces of legislation that eked through the House on a party line vote, would prevent the board from issuing any further rulings until the Supreme Court has ruled on the matter or the Senate has properly confirmed at least three board members. Congressional Republicans have slammed the administration for disregarding court rulings.

Roe sponsored the provisions in the bill that would force a newly formed board to review decisions issued during Block and Griffin’s tenure, in order to avoid the shock that could occur if the Supreme Court invalidates the 600 rulings issued by the NLRB during that time.

The court has demonstrated a willingness to do just that: in 2010, the high court dismissed hundreds of NLRB rulings dating back to 2007 because it had only two members at the time.

Labor watchdogs praised the GOP for reining in the labor board and emphasizing the Senate’s role in confirming presidential appointees.

“Allowing the board to continue to issue decisions with this cloud over its authority is inconsistent with the principles of good government and undermines the rule of law,” Workforce Fairness Institute Executive Director Fred Wszolek said in a letter to Congress. “It sends a confusing message to employees, employers and unions across the country who are uncertain as to whether the board’s orders have any validity.”

Democrats attempted to sidestep the vote by returning the bill to a committee. The motion failed along party lines.

The Obama administration is attempting to push through a package of five board members to avoid Republican opposition to Block and Griffin. He nominated Republicans Harry I. Johnson III and Philip A. Miscimarra, along with re-nominating Pearce, on Tuesday. If confirmed, the three would be able to form the quorum needed to issue rulings.

“With these nominations there will be five nominees to the NLRB, both Republicans and Democrats, awaiting Senate confirmation,” Obama said in a statement. “I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people.”

Obama has said that he will veto the bill if it passes the Democrat-controlled Senate. Roe said the GOP already scored a victory when Obama announced the nominations.

“He already heard the message; we saw that when he nominated the three to comply with the process,” Roe said.

Obama re-nominated NLRB Chairman Mark Gaston Pearce, a Democrat, as well as Republican labor attorneys Harry I. Johnson and Philip A. Miscimarra. If confirmed by the U.S. Senate, Johnson and Miscimarra could help the administration avoid House legislation that would prevent the board from functioning.

“With these nominations there will be five nominees to the NLRB, both Republicans and Democrats, awaiting Senate confirmation,” Obama said in a statement. “I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people.”

A source familiar with the nominations told the Washington Free Beacon that the administration has previously “solicited names from Senate Republicans” of nominees that could be confirmed quickly.

The announcement comes in the wake of the D.C. Circuit Court of Appeals ruling that declared Obama’s recess appointment of Sharon Block and Richard Griffin unconstitutional because the Senate was still in session. Obama outraged congressional Republicans after ignoring the court and allowing the board to continue operating.

Obama nominated Block and Griffin to full terms in February. Sources told the Washington Free Beacon Obama is using the two Republicans to help push through Block and Griffin.

Republicans drafted a package of legislation that would block the NLRB from issuing rulings on labor disputes until the Senate has confirmed at least three board members—the minimum needed to operate, according to a 2010 Supreme Court ruling. The legislative package will be introduced on Wednesday and could come up for a vote on Thursday.

Rep. Phil Roe (R., Tenn.), who sponsored a bill that would force a newly formed NLRB to review the 600 cases it decided after the recess appointments, said the announcement signaled a Republican victory.

“I think [the legislation] made the president go ahead and nominate people to the board who can be confirmed,” Roe said. “The president avoided the constitutional process a year ago and now he’s doing his job now, going back to seek the consent of the Senate.”

Mark Mix, president of the National Right to Work Foundation, said he hopes the House will still vote on the legislative package “in order to shed light on the fact that this board has been operating outside of legal authority” and to rally Senate Republicans to check Obama’s power.

“President Obama wasn’t going to sign the bill, he’s behind the usurpation of power,” Mix said. “But [House Republicans] may use this as leverage to get the GOP in the Senate to conduct thorough vetting [of nominees].”

However, the confirmation of all five nominees does not end the potential impact of the appeals court ruling. Parties that appeared before the understaffed board have filed a lawsuit to dismiss the rulings it handed down. Many have questioned the constitutionality of the decisions.

Many industry and legal observers expect the case to reach the Supreme Court.

“The court of appeals was very clear on the illegality of the recess appointments,” Mix said. “These are significant questions in legal field whether or not the legal activities are going to stand.”

Republicans have accused the board of becoming an activist branch on behalf of labor unions. Former Republican board member Brian Hayes accused his colleagues of bias in one of the last board rulings in 2012.

However, labor unions have also challenged the constitutionality of the board.

The NLRB and two appeals courts ordered Teamsters Local 523 to pay a non-union worker $47,000 in back-pay after ruling that the union had improperly punished him for not joining. The Tulsa, Okla., union is now challenging the constitutionality of the board, according to the Daily Caller.

“The union disputes that the board is properly and sufficiently constituted, as ‘recess’ appointments (to NLRB) were made when there was no recess,” Local 523 president Gary Ketchum said in a court filing.

Ketchum declined comment on the NLRB legislation, saying, “I’m not going to elaborate on that. There may be cases out there that are favorable [to the union].”

The Supreme Court in 2010 threw out hundreds of NLRB decisions dating back to the Bush administration because it operated with less than three board members.

Rep. Roe said Congress can avoid the “uncertainty [the court] has over labor groups and employers” by passing his legislation, which would sunset before 2014.

“The bill says that if the president’s nominees are confirmed, they need to go back and review these decisions, so we don’t have a court throw them all out,” he said. “It’s not a partisan issue, it’s a constitutional issue. Democrats should be just as concerned because someday a Republican will be in the White House.”

A three-judge panel from the D.C. Circuit Court ordered the board to file a written response defending President Barack Obama’s recess appointments.

The ruling stems from the National Right to Work Legal Defense Foundation’s (NRTW) appeal to an NLRB ruling that forced non-union employees to pay for union lobbying costs. National Right to Work attorney Glenn Taubman said the board’s decision violates Beck Rights, which allow employees to opt out of union.

NRTW’s appeal, however, relied more heavily on challenging the legitimacy of the board’s composition than it did the “merits of workers being coerced to pay for unions’ partisan political agenda,” according to Taubman.

“This is really just about the recess appointments,” he said. “They have no authority to act, and the courts should forbid them from acting on this case or any others.”

The circuit court order follows a separate D.C. court ruling that declared President Obama’s January 2012 recess appointments of Democrats Richard Griffin and Sharon Block unconstitutional. Numerous appeals have been filed in the D.C. circuit seeking to overturn NLRB decisions issued during that time.

The board has refused to acknowledge the earlier ruling and continues to issue decisions in major labor disputes.

NLRB spokeswoman Nancy Cleeland said the board does not comment on ongoing litigation but noted that the future of many appeals will have to wait for a higher court to decide on the recess appointments.

“[This] is a request for response, not a ruling … an incremental thing that we don’t comment on,” she said. “The D.C. Circuit has been holding a lot of NLRB cases until the bigger question of the recess appointments is resolved in the courts.”

The court’s request for response demonstrates its willingness to take on the board and could have major implications for other parties waiting to appeal NLRB decisions, Taubman said.

“[The order] means the Court of Appeals is taking a serious look at shutting down the board,” he said. “The implication for other cases is clear if they shut down the board in our case.”

The NLRB ordered HealthBridge Systems to rehire hundreds of union members in November who had been on strike since July despite a criminal investigation into allegations that some strikers sabotaged the identification documents and medical records of elderly residents, including those suffering from dementia and Alzheimer’s.

HealthBridge was seeking an emergency stay of the NLRB order, which would have prevented the union members from returning to work until the case is appealed. The court’s rejection was the second and final decision in the appeal after Justice Ruth Bader Ginsburg dismissed it on Monday. Justice Antonin Scalia referred the case to the court on Wednesday. Justice Samuel Alito did not participate in the hearing because his wife Martha Ann represented HealthBridge.

“Throughout this process, our guiding principle has been to provide the highest standard of care and safety to our patients,” the company said in a statement. “The court order makes it all the more urgent for the office of the Connecticut chief state’s attorney to complete its investigation of the union workers who committed acts of sabotage against patients when the workers went on strike in July 2012.”

The case could have had major implications for the NLRB, an independent board that settles labor disputes. Obama used his recess authority to make three appointments while the Senate was in pro forma session. A three-judge panel of the D.C. Circuit Court of Appeals declared those appointments unconstitutional in January in Noel Canning v. NLRB.

HealthBridge drew significant portions of its appeal from the D.C. Circuit’s ruling and pointed to the fact that legal experts say Noel Canning will eventually appear before the high court.

“The validity of the president’s recess appointments to the board is a question that will inevitably and quickly find itself before this court, whether in this case, Noel Canning v. NLRB, or another,” the appeal said. “It would be highly anomalous to force HealthBridge to comply with the district court’s order without even having the chance to present its constitutional challenge to the court of appeals or this court.”

HealthBridge is not the only medical center to challenge the legitimacy of the NLRB board. California’s Prime Healthcare Systems informed its union Jan. 30 that it would not comply with an NLRB order that companies must collect dues money for labor groups.

“The D.C. circuit’s ruling from last Friday held all the board’s cases decided by the recess appointments are void,” Prime Healthcare’s assistant general counsel, Mary Schottmiller, told Reuters. “As such, it would violate the law if we followed the Board’s rulings … regarding union dues and witness statements.”

HealthBridge contended it should not be singled out for compliance when so many others are ignoring NLRB rulings while waiting for the courts to act.

“While employers across the country are openly defying final Board adjudications of unfair labor practices, secure in the knowledge that they may challenge those orders in a court that is sure to invalidate them, the coercive power of an Article III court is being used to effectively foreclose HealthBridge’s efforts to pursue the same constitutional challenge even though no one has ever even made a final determination that HealthBridge engaged in any unlawful conduct,” the company’s appeal said (emphasis in the original).

The company now says it will respect the board’s decision.

“While we are disappointed in the decision, HealthBridge managed health care centers intend to comply with the district court’s order,” it said in a statement.

The court said in Noel Canning that presidents can only use recess authority to fill vacancies when the Senate is out of session. The appeals court reasoning follows the strict letter of the Constitution. However, it stands in contrast to how presidents have exercised the authority in the past.

Legal insiders maintain that the Canning decision will reach the high court even if HealthBridge’s challenge was dismissed.

“This is the first time in 200 plus years that the courts have reined in the executive on the recess appointment clause. … It’s a big victory for checks and balances,” said Glenn Taubman, counsel for the National Right to Work Legal Defense Foundation, which filed amicus briefs on behalf of Noel Canning. “Hopefully, the Supreme Court will follow the original intent of Constitution” when it gets there.

Board chairman Mark Gaston Pearce—the only current boardmember to undergo Senate confirmation—said the NLRB would defy the D.C. Circuit’s decision until a higher court weighed in on the case.

“The board respectfully disagrees with [the court’s] decision and believes that the president’s position in the matter will ultimately be upheld,” Pearce said in a statement issued after the ruling. “In the meantime, the board has important work to do … we will continue to perform our statutory duties and issue decisions.”

Pearce has issued numerous judgments in the wake of the ruling with the help of recess appointees Richard Griffin and Sharon Block.

Senate Republicans are looking to curtail the NLRB’s refusal to take action to enforce the D.C. circuit judgment, including legislation to halt board judgments until the issue is resolved.

“Any decisions or regulations made by the people who have no right to be there are invalid,” Sen. Mike Johanns (R., Neb.) said in a statement announcing the Restoring the Constitutional Balance of Power Act of 2013. “This legislation forces them to stop functioning as if they legitimately hold office and recognize the reality that the president overstepped his constitutional authority.”

The Workforce Fairness Institute (WFI), a nonprofit labor watchdog, raised the prospect of recusal, citing then-solicitor general Kagan’s defense of President Obama’s recess appointments in a previous case regarding the composition of the National Labor Relations Board.

The Supreme Court invalidated more than 600 NLRB decisions in the June 2010 case New Process Steel v. NLRB because the board had been issuing decisions with only two members. Kagan defended Obama’s approach to board composition and recess appointments in several briefs, writing in April 2010 that the court “would significantly burden the rights protected” by the National Labor Relations Act if it decided against the administration.

The D.C. Circuit Court of Appeals in January ruled in Noel Canning v. NLRB that Obama violated the Constitution when he appointed Richard Griffin and Sharon Block to the board without Senate confirmation while the upper legislative chamber was in pro forma session. Legal experts predict the case will end up in the Supreme Court.

The WFI, which filed amicus briefs in the case, pointed out that Kagan pledged to recuse herself from any case “in which I have signed any kind of brief” during her 2010 Senate confirmation hearings. The associate justice has recused herself on previous cases, including the 2011 challenge to Arizona’s strict immigration laws, because of her work as solicitor general.

Leslie W. Abramson, a legal ethics professor at the University of Louisville, said the WFI’s call falls short of existing legal precedent for recusal, pointing to the late-Chief Justice William Rehnquist’s refusal to step down from ruling on the constitutionality of a law he had praised in a Senate committee before joining the court.

“As Rehnquist wrote, nobody comes to the court tabula rasa,” Abramson said. “Something a sitting judge has done in a prior life being used to recuse the justice in pending case before the court is a high threshold [to clear].”

Glenn Taubman, an attorney with the National Right to Work Legal Foundation, which also filed an amicus brief in Noel Canning, said Kagan should examine carefully her previous recess appointment work in making her decision.

“It certainly sounds reasonable that she would have to consider recusal, given the active role she took on recess appointments in New Process Steel and her opinion on what constitutes a proper recess appointment,” he said.

Update 10:15 a.m. Wednesday: The story has been updated to reflect that the Workforce Fairness Institute–and not the Chamber of Commerce, which operates the Workforce Fairness Initiative—called for Kagan’s recusal. 

“This bill would terminate the salaries of Obama’s illegal NLRB appointees and block the board from taking any action until these appointees are legally confirmed,” Blunt wrote in an op-ed in Reuters introducing the bill.

The bill has already gained a number of prominent GOP cosponsors since Blunt introduced it on Wednesday, including Sens. John Cornyn (Texas), Ted Cruz (Texas), Tim Scott (S.C.), Jim Inhofe (Okla.), Susan Collins (Maine), Pat Roberts (Kan.), and Mike Lee (Utah).

Lee has been especially critical of Obama’s decision to place Griffin and Block on the board while the Senate remained in pro-forma session. Lee spokesman Brian Phillips said lawmakers have been forced to turn to legislative means to oust the controversial appointments, since the administration has refused to take any action.

“They’re not going to step down until the Supreme Court weighs in [on the Appeals Court decision],” he said.

The NLRB will appeal the court’s decision.

“The board respectfully disagrees with today’s decision and believes that the president’s position in the matter will ultimately be upheld,” NLRB chairman Mark Gaston Pearce said in a statement.

The ruling was accompanied by a stay that allows the board to continue its operations. Pearce pledged to exercise that leniency until a higher court orders him to stop.

“In the meantime, the board has important work to do,” he said. “The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

The board has issued several decisions in labor disputes since the court ruling. Senate Republicans have introduced a separate bill that would prevent the NLRB from taking any actions until the Senate properly confirms its board members.

“If they won’t take down their ‘Open for Business’ sign and put up one that says ‘Help Wanted,’ then the Senate will,” Sen. Lamar Alexander (R., Tenn.) said. “The president created this problem but the Constitution provides him with a way to fix it—send the Senate acceptable nominees to fill these important positions.”