A three-judge panel of the D.C. Circuit Court has ruled that the National Labor Relations Board (NLRB) does not have the required three-member quorum because President Obama’s appointments to the Board in January 2012 violated the Recess Appointments Clause.
The opinion in Noel Canning v. NLRB, written by Chief Judge Sentelle, states that the Board’s decision against Noel Canning in February of last year must be vacated. This opens the door for the invalidation of all of the Board’s 2012 and 2013 decisions.
The Board argued that the President had the power to appoint three members in January of last year, when the Senate was holding pro forma sessions. Noel Canning, along with the amicus curiae briefs, argued that this practice was invalid because the Senate did not recess during that time.
Sentelle stated “To adopt the Board’s proffered intrasession interpretation of ‘the Recess’ would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause.”