A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit has put hundreds of National Labor Relations Board (NLRB) decisions over the past year in jeopardy of being invalidated — and the Obama administration is steamed.
In the case Noel Canning v. NLRB, the court ruled that the three appointments to the NLRB President Obama made in January of 2012 are unconstitutional.
CBS is reporting that White House spokesman Jay Carney said the Obama administration “respectfully but strongly” disagrees with the court’s ruling.
As a result, it’s expected the administration will appeal the ruling, which could take the case all the way to the Supreme Court.
Controversial rulings in peril
If the ruling were to stand, it would mean that the NLRB’s controversial rulings on social media, union dues, confidentiality in workplace investigations and employee handbooks could be made invalid.
It would leave the board during those decisions with only two validly appointed members, which is not enough for it to function under the law.
That would certainly make many Republicans happy. The GOP and other business groups criticized the appointments when they were made, describing them as too pro-union. They’ve also attacked recent NLRB rulings, saying they’ve made it too easy for unions to add new members.
The president is allowed to fill vacancies on the NLRB by making appointments when the Senate is in recess.
And the White House says while the Senate was in a 20-day holiday recess, the president made the appointments.
But that’s not how the appellate court saw things. It ruled the Senate wasn’t in recess because the gavel fell every few days for “pro forma” sessions, which are typically held as a formality. Therefore, it said the recess appointments weren’t technically allowed under the constitution.
Holding sessions like that is a tactic both Democrats and Republicans have used in the past to keep presidents from using their recess powers, reported CBS.
There was also a second problem with the appointments, according to the appellate court. It said board vacancies must open up during an intersession recess to qualify for a recess appointment, which was not the case here.