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Bench Memos

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Re: Third Circuit Ruling Against Presidential Recess-Appointment Authority



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The Wall Street Journal has a great summary of the Third Circuit’s opinion invalidating one of President Obama’s NLRB recess appointments:

In a 2-1 decision, Judge D. Brooks Smith ruled in National Labor Relations Board v. New Vista Nursing and Rehabilitation that Mr. Obama’s recess appointment of Craig Becker in March 2010 was illegal because the Senate was not between sessions. To allow such appointees, Judge Smith wrote, “would eviscerate the divided-powers framework the two Appointments Clauses establish.

“If the Senate refused to confirm a president’s nominees, then the president could circumvent the Senate’s constitutional role simply by waiting until senators go home for the evening. The exception of the Recess Appointments Clause would swallow the rule of the Appointments Clause.”

The decision is significant because the Third Circuit panel adopted the reasoning of the D.C. Circuit in January’s Noel Canning decision. But the implications go further. Mr. Becker’s term began earlier than the other recess appointees, thus invalidating hundreds of other decisions that the labor board made without a legal quorum. The number of NLRB decisions jeopardized by the three illegal recess appointments now stand at some 1,200. Yet the Obama NLRB keeps issuing rulings as if it operates in its own legal universe.

Notably, the president’s recess-appointment power, as interpreted by the D.C. Circuit and the Third Circuit’s, is significantly narrower than the power exercised by President Obama’s January 2012 non-recess appointments. Accordingly, even the most modest interpretation of this power by the Supreme Court will likely yield a defeat for Obama. Keep that in mind if the Court invalidates the president’s January non-recess appointments and the Left somehow blames Republicans – it was President Obama’s appointments that, as the D.C. Circuit put it, “eviscerate[d] the Constitution’s separation of powers.”



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