Bench Memos

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President’s NLRB Recess Appointments ‘Constitutionally Invalid’


As Ammon noted, the United States Court of Appeals for the D.C. Circuit just ruled that the president’s so-called recess appointments to the National Labor Relations Board (NLRB) are invalid, stating that they did not happen during a recess. The ruling states: 

In short, we hold that “the Recess” is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception.

In ruling this way, the court invalidated the underlying NLRB action at issue in the case as well, concluding that the invalid appointments logically meant that the NLRB’s required quorum was also not met (and logically any action it took since the end of their valid recess appointments).

The ruling further clarifies the nature of recess appointments:

Consistent with the structure of the Appointments Clause and the Recess Appointments Clause exception to it, the filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose. There is no reason the Framers would have permitted the President to wait until some future intersession recess to make a recess appointment, for the Senate would have been sitting in session during the intervening period and available to consider nominations.

This clarity directly undermines the Office of Legal Counsel’s curious legal theories that gave the president a basis to take such unprecedented action in sidestepping the Senate when making these appointments. I hope to examine this ruling, which you can read here, more closely in the coming days.    


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