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5/16/13, "Second appeals court invalidates Obama's NLRB recess appointments," Politico, Kopan
"A second appeals court has joined the D.C. Circuit in ruling that
President Barack Obama’s recess appointments to the National Labor
Relations Board were unconstitutional, concluding that some board
actions taken in the wake of those appointments were also invalid.
The issue has far-reaching implications for both the NLRB and other
boards, including Obama’s Consumer Financial Protection Bureau, which
has been a frequent target of conservatives and whose director was a
recess appointment.
The 2-1 decision Thursday from the U.S. Court of Appeals for the Third Circuit (posted here)
found that the presidential recess appointment power is limited to
breaks between sessions of Congress, not breaks within sessions or other
adjournments during which the Senate might meet in pro forma sessions.
The reasoning mirrors that in a ruling of the D.C. Circuit Court in January.
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.
The opinion, written by Judge D. Brooks Smith, said the recess clause
of the Constitution should be read not just to give the president
executive power, but also to preserve the “advice and consent” role of
the Senate.
In his dissent, Judge Joseph. A Greenaway Jr. said the majority’s
reading of the clause was needlessly narrow and ignored the Founding
Fathers' intent to give the president the ability to act when the Senate
is not available to “advise and consent.”
The administration late last month petitioned the Supreme Court to overturn the D.C. Circuit Court’s ruling on the issue.
The decision comes the same day that the Senate Help Subcommittee held a hearing on five nominations to the NLRB. Sen. Tom Harkin said they nominations would be moved next Wednesday." via Free Republic
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