Supreme Court Will Decide Whether President’s Purported “Recess” Appointments are Constitutional
As predicted, the Supreme Court of the United States announced today that it will address the constitutionality of President Obama’s purported “recess” appointments of Members to the National Labor Relations Board. The Supreme Court’s decision, which could invalidate hundreds of Board decisions made during the past two years, is expected by July 2014.
The NLRB brought the issue to the Supreme Court after the United States Court of Appeals for the District of Columbia decided in Noel Canning v. NLRB that the President’s appointments violated the Advice and Consent clause of the Constitution. You can read more about that decision here. The United States Court of Appeals for the Third Circuit recently issued a similar decision in NLRB v. New Vista Nursing & Rehab., about which we also previously blogged. In short, the D.C. and Third Circuits held that the Constitution allows the President to make appointments under the “Recess Appointments” clause without the advice and consent of the Senate only if Congress is on a formal intersession recess as opposed to an intrasession break.
To date, the Board continues to take action despite the decisions in Noel Canning and New Vista Nursing that it is not properly constituted. The Senate is currently considering nominations of Board Members, which, if approved, would give the Board the quorum it needs to take action under the National Labor Relations Act.