Remember that time in 2012 when President Obama unilaterally declared the Senate in recess so he could make “recess” appointments? During the “recess,” he appointed three people to the National Labor Relations Board and controversial Richard Cordray to head the new Consumer Financial Protection Bureau.
The case has been winding its way through courts since then, with the appointments and every action taken by their respective agencies in the interim hanging in the balance. In January, the three-judge U.S. Court of Appeals for the D.C. Circuit ruled the NLRB appointments were unconstitutional (Cordray’s appointment is part of a separate case).
The ruling means that a full year of work from the NLRB will go down the tubes, if the Supreme Court upholds this ruling. The three appointments allowed the panel to form the quorum necessary to pass decisions. Now every ruling made by the NLRB will be delegitimized as soon as those harmed by the rulings take this into court.
The 3rd Circuit case centered on decisions the NLRB made on the authority of three members including Craig Becker, who was appointed by the president on March 27, 2010, while the Senate was adjourned for two weeks.
The case was brought by a New Jersey nursing and rehabilitation center whose nurses were allowed to form a union by one such NLRB decision. The facility, New Vista, contended that the board’s decision was invalid because it did not have enough members active when the decision was issued because the naming of Becker to the board was not a valid recess appointment.
The NLRB must have three members participate in a decision for it to be valid, and the court found that because Becker was not appointed during a break between sessions of Congress, he was not a valid member of the board and thus invalidated the NLRB’s orders.
In April, the White House asked SCOTUS to back it on this. Stay tuned. The case has the potential, not just to mess with these appointments, but with the tradition of the recess appointment, more broadly.
Cue a badly timed Richard Trumka op-ed claiming this is all the doing of dastardly extremist Republicans. Bingo.