Court: Obama Violated Constitution in Making Recess Appointments

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Obama's NLRB appointments made when Senate wasn't actually in recess - unconstitutional, says Court. Image by Geraldshields11

Obama’s NLRB appointments made when Senate wasn’t actually in recess – unconstitutional, says Court. Image by Geraldshields11

A U.S. Federal Court of Appeals ruled that President Obama violated the Constitution with ‘Recess Appointments’ made to the National Labor Relations Board (NLRB) while the Senate was still technically in-session. If the decision stands, the power of a president to make appointments without Senate approval will be greatly reduced.

The unanimous decision of the United States Court of Appeals for the District of Columbia Circuit was handed down January 25, 2013. The law suit was not launched simply as an attack on Obama’s actions. Rather, it was an ordinary application for review brought by the petitioner against the National Labor Relations Board (NLRB).

One of the arguments raised, and accepted by the three member panel of the court, was that Obama made appointments to the NLRB when the Senate was on break. It was argued the break was not a true recess and therefore the president exceeded his powers under the Constitution when he bypassed the Senate in making these appointments. The court agreed.

Noel Canning, a Division of the Noel Corporation v. National Labor Relations Board: How it all Started

On February 8, 2012, the NLRB made a finding that Canning engaged in unfair labor practices. The Board determined Canning refused to reduce to writing and execute a collective bargaining agreement made between the company and Teamsters Local 760.

Under the United States Code, a party affected by a decision of the NLRB can apply to the appellate court for a review of a decision made by the NLRB. The application for review was filed by Canning on February 24, 2012. The NLRB made a cross-application seeking enforcement of the collective agreement.

Canning argued the Board did not apply the applicable contract law when it determined there was in fact an agreement reached between the company and the union. If this was the case, then Canning was not guilty of unfair labour practices.

In addition to the substantive arguments, Canning also argued the Board did not have a quorum when it made its decision because three of the five members of the panel that heard the matter were appointed as recess appointments in January 2012, and neither the appointments nor the vacancies on the Board occurred when the Senate was in recess. The court agreed that if any of these two conditions were correct, the decision of the NLRB was void ab initio – should be treated as being invalid from the beginning.

NLRB: Considering the Case

The court was required to consider the merits of the case first. Only if they found there was substantive remedy the court could award to the petitioner could they consider the constitutional arguments. The court concluded there was merit in the petitioner’s complaints, and were then able to consider the constitutional argument.

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