Legal News

Appeals Court Ousts Obama’s NLRB Recess Appointments as Unconstitutional
Download PDF
1 Star2 Stars3 Stars4 Stars5 Stars (No Ratings Yet)

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.

Get JD Journal in Your Mail

Subscribe to our FREE daily news alerts and get the latest updates on the most happening events in the legal, business, and celebrity world. You also get your daily dose of humor and entertainment!!



Family Law Attorney


What does an Attorney do at MFL? Perform consultations with potential clients and retain them ...

Apply now

Associate Attorney

USA-CA-Newport Beach

Smith Smith & Feeley LLP is an AV-rated law firm located in Newport Beach, California, with a specia...

Apply now

Family Law Attorney

USA-CA-San Jose

Why we think we’re the best… Here are some highlights of our amazing culture, perks, ...

Apply now

Immigration Attorney

USA-LA-New Orleans

  Maria Cordero --   A Law firm in Gretna, LA is looking for an Immigration at...

Apply now




Search Now

Mid-level Corporate Associate Attorney


Napa office of a BCG Attorney Search Top Ranked Law Firm seeks a mid-level corporate associate attor...

Apply Now

Liability Defense Attorney

USA-FL-Fort Lauderdale

Ft. Lauderdale office of our client seeks liability defense attorney with 3+ years of insurance defe...

Apply Now

Litigation Associate Attorney

USA-CA-San Francisco

San Francisco office of a BCG Attorney Search Top Ranked Law Firm seeks litigation associate attorne...

Apply Now

Most Popular


To Top