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Appeals Court Ousts Obama’s NLRB Recess Appointments as Unconstitutional
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Bipartisan battling persists now that the 4th Circuit Court of Appeals ruled Wednesday that President Obama’s three recess appointments on the National Labor Relationships Board last year were unconstitutional. Obama appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffon, and NLRB counsel Terence Flynn to fill vacancies on the five member board. But he can only do that while the Senate was in recess, and that the Senate wasn’t. Why not? They were on vacation, after all. But the GOP had a strategy for preventing Obama from filling vacancies; they would conduct pro-forma sessions every few days to invalidate that the senate was really on recess. Obama’s team relied on a 1921 attorney general’s interpretation that they really were on recess, but the appeals court went with the original constitutional meaning and declared Obama’s appointments unconstitutional.

“[W]e conclude that the President’s three January 4, 2012 appointments to the Board are constitutionally infirm, because the appointments were not made during ‘the Recess of the Senate.’ Accordingly, we deny the Board’s applications for enforcement of its orders,” the court wrote.


So, naturally enough, the next step would be to take the case to the Supreme Court, but that might not be necessary. Though the Supremes have agreed to hear it, Obama has meanwhile nominated two new people, AFL-CIO lawyer Nancy Schiffer and Lent Hirozawa, counsel to NLRB Chairman Mark Pearce. So that may be that.

The 4th Circuit Court of Appeals, meanwhile, was made up of two Republicans appointees, Judge Clyde H. Hamilton, and Judge Allyson K. Duncan, and also Obama appointed Judge Albert Diaz, who agreed with the other two, except on the matter of constitutionality.

What this means is that the 4th Circuit has invalidated NLRB decisions that condemned Enterprise Leasing Company Southeast and Huntington Ingalls Inc. for refusing to bargain with unions. The newly appointed NLRB members could in fact uphold those and hundreds of other decisions, however.

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