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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