Third Circuit Ruling Against Presidential Recess-Appointment Authority

by Ed Whelan

From How Appealing comes news that a divided Third Circuit panel, in NLRB v. New Vista Nursing and Rehabilitation, has ruled that President Obama’s March 2010 recess appointment of Craig Becker to the NLRB was invalid. Specifically, the panel majority holds that the president’s recess-appointment authority is exercisable only during intersession recesses. The panel majority finds it unnecessary to address the separate question whether the word happen in the Recess Appointment Clause (“The President shall have Power to fill up all vacancies that may happen during the Recess of the Senate …”) means that the recess-appointment authority applies only for vacancies that arise during a recess.

I haven’t had time yet to do more than glance at the ruling, so I’ll just note that the D.C. Circuit in its recent Noel Canning ruling against the NLRB ruled both that the recess-appointment authority is limited to intersession recesses and that it is limited to vacancies that arise during those recesses.

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