On Friday, a federal appeals court ruled that President Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) were unconstitutional.
Specifically, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit held that the recess appointments violated the Article II, Section 2 of the Constitution, the so-called Appointments Clause.
This article grants the president power to “nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”
Just over a year ago, President Obama used recess appointments to fill three seats on the National Labor Relations Board, arguing that the appointments were made in complete compliance with his Article II powers.
The majority of the D.C. Appeals Court disagreed, writing:
The [NLRB] 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. Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated. [Citations contained in the opinion have been omitted in this article.]
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