President Obama's NLRB Recess Appointments Ruled Unconstitutional by Federal Appeals Court

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President Obama violated the Constitution when he circumvented the Senate to fill three vacancies on the National Labor Relations Board (“NLRB”) in January 2012. The U.S. Court of Appeals for the D.C. Circuit ruled that the President’s appointments were invalid from the inception for two reasons: i) the appointments were not made during “the Recess” of the Senate; and ii) the vacancies did not “happen” during “the Recess.” Therefore, the President did not have the constitutional authority to make these recess appointments to the NLRB.

The NLRB is a five-member board that requires at least a three-member quorum to act. The decision renders the President’s appointment of Sharon Block, Richard Griffin, and Terrence Flynn (who resigned after his appointment) invalid. This leaves Chairman Mark Pearce as the only properly installed member of the NLRB and effectively obviates the Board’s power to act because it is without a quorum.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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