January 25, 2013 01:16 PM UTC

DC Circuit Court Overturns Recess Appointments

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• by: Phoenix Rising

(Promoted by Colorado Pols)

In a move that is sure to have repercussions down the road, The D.C. Circuit Court of Appeals has invalidated the appointments of three National Labor Relations Board members – and, essentially, all of the decisions made by the board in the past year.

The ruling, unanimously issued by a panel of three conservative jurists, states that the recess appointment is limited to the period of time after Congress has recessed for the remainder of the session (once every two years before the next session is sworn in) – i.e. almost never in today’s Congressional schedule. It further limits recess appointments to those positions that open up during the recess.

Based on this originalist interpretation of the Constitution, the three NLRB board members were not properly appointed and of their decisions are all invalidated. (The NLRB is a five-member board, and three members must be present for all decisions; at the time of the appointments, Republicans had blocked all NLRB nominations and only two seats were filled, halting all NLRB business. Since then more retirements have taken place; with today’s decision, only one NLRB member is still in office.)

Worse perhaps than the overturning of the NLRB board actions is the fact that this decision opens up every single action of a recess appointee throughout history – all that stands in the way of revoking thousands of decisions is a court challenge for each appointee. This includes Federal judges, Cabinet members and various board members from both Democratic and Republican Presidents throughout modern history; there were almost 300 not-really-recess appointments made by Clinton and Bush 43 alone.

It is almost certain that the Obama Administration will appeal the ruling to either an en banc review from the D.C. Circuit or, more likely, the Supreme Court.В  (The DC Circuit is one of the Republican Party’s greatest success stories when it comes to withholding approval for nominees – it currently has three vacancies, and Judge Santelle, who wrote this opinion, will make it four at the end of the month. On the other hand, Chief Justice Roberts essentially suggested during a case briefing that Obama use the recess power to work around Senate obstruction…)