Supreme Court Strikes NLRB Recess Appointments


The United States Supreme Court has struck down President Obama’s controversial 2012 nominations to the NLRB, holding that the President violated the Constitution by using his recess appointments power when the Senate was still in session.

The ruling in NLRB v. Noel Canning calls into question hundreds of mostly pro-union NLRB decisions rendered by the improperly constituted board.  It also will limit the ability of future presidents unilaterally to fill agency vacancies with highly partisan appointees.

From the Washington Post’s, Supreme Court rebukes Obama on recess appointments:

The case was a rarity in that the Supreme Court has never had reason to play referee on the issue before and has no precedent to rely on. While the current battle is between Obama and Senate Republicans, the tension has existed equally when a Republican has occupied the White House and Democrats objected to his appointments.

We are currently reviewing the decision and will provide our readers a detailed analysis.  In our initial reading of the decision, however, it is clear that the Court agrees the cat and mouse game between the Executive Branch and Congress regarding recess appointments had become untenable. The Canning ruling appears to provide a reasonable framework for applying the Constitution’s Appointments Clause in the modern era.



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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