In Noel Canning v. NLRB the D.C. Circuit held that
President Obama's "recess" appointments to the NLRB were
unconstitutional. For a rundown of the implications of this holding, see
here. I warned you that the Third
Circuit was also looking at this issue also. Well guess what?
Yesterday, the Third Circuit dropped the hammer. In New Vista Nursing v.
NLRB [an enhanced version of this opinion is available to lexis.com
subscribers], the Third Circuit became the second federal appellate
court to hold that the Constitution's recess appointments clause allows only intersession
(not intrasession) recess appointments. Therefore, President Obama's
NLRB "recess" appointments were unconstitutional - and the NLRB
doesn't have enough members to officially operate (see
New Process Steel).
If you want to read the 102-page opinion (and 55-page dissent), knock yourself
Conspiracy's John Elwood has a nice post on the decision, including:
The majority thought context was more helpful, particularly
"the Recess Appointment Clause's specification that recess-appointed officers'
terms 'shall expire at the End of [the Senate's] next session.'" It reasoned,
"[t]he expiration of these officers' terms at the end of the next session
implies that their appointments were made during a period between sessions,"
id. at 75, and "if recess includes intrasession breaks, then we would expect
the recess-appointment term to last only until the end of that session." The
majority then addressed historical practice, Id. at 87-95, reaching essentially
the same conclusion as the D.C. Circuit: the absence of Founding-era
intrasession recess appointments suggests the power does not extend that far.
Employers and employees could already choose to
appeal NLRB decisions to the D.C. Circuit (or their "home circuit").
For parties in the Third Circuit, both routes now lead to the same place: the
NLRB is powerless.
This decision also places even more pressure on the Supreme Court to take Noel
Canning and decide the scope of the president's recess appointments power.
I suspect a major SCOTUS ruling next year . . . .
Read additional employment law articles on Phillip Miles'
blog, Lawffice Space.
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