Third Circuit: President Obama’s NLRB Recess Appointments Unconstitutional

 The United States Court of Appeals for the Third Circuit today in a 2-1 decision invalidated a number of orders of the National Labor Relations Board in NLRB v. New Vista Nursing And Rehabilitation [an enhanced version of this opinion is available to lexis.com subscribers], holding that the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3., refers only to intersession breaks of the Senate and not to intrasession breaks. The court held that, because one Board member was invalidly appointed during an intrasession break, the Board lacked the requisite number of members to exercise the Board's authority.

Judge Joseph A. Greenaway wrote a lengthy dissent, arguing that the Recess Appointments Clause should apply to both intersession and intrasession breaks because the Senate is unavailable to provide advice and consent in the appointment process in both instances.

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