DC Appeals Court rules Obama NLRB appointments unconstitutional


Mark Gaston Pearce, chairman of the National Labor Relations Board (NLRB), issued a statement on Friday in response to the decision of a federal Appeals Court that held that President Obama’s three appointments to the NLRB, while the Senate was in session, are unconstitutional, and that all actions taken by these appointees are invalid.

Pearce’s statement is as follows:

The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. 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.

In other words, Pearce is indicating that the NLRB will ignore the Appeals Court ruling because, as he interprets, the ruling only applies to the particular case, Noel Canning v. NLRB, that went before the court.

Jay Carney, President Obama’s spokesman, also denounced the ruling, stating that the decision has “no impact on the ongoing operations of the National Labor Relations Board.”
Obama said he had the authority under the Constitution’s recess appointments clause, which grants power for such appointments “during the Recess of the Senate,” when senators are unavailable to provide their advice and consent.

Sentelle, joined by Judges Karen LeCraft Henderson and Thomas B. Griffith, said that the Constitution’s reference to “the Recess” means that appointments are allowed only during the recess between sessions of the Senate, not when the Senate is simply on a break. It was not up to the president to decide what constitutes a recess, Sentelle said.

The ruling noted that another federal appeals court has read the Constitution differently, which adds to the likelihood the Supreme Court will have to settle the issue.

Sentelle and Henderson went where apparently no other court has gone. They said that the president has the authority to make appointments only to vacancies that arise during a recess, which would drastically limit a president’s ability to make use of the recess appointment power.

A senior administration official who was granted anonymity to discuss White House legal strategy said it was unlikely that the White House would ask the full D.C. Circuit court to take up the case. The official said it might be better to wait for other courts around the country to rule on similar cases and then seek Supreme Court review.

Senate Republicans said the decision was a victory for the separation of powers.