President Obama in 2010 appointed Craig Becker to the National Labor Relations Board while the Senate was in recess for two weeks.
But now an appeals court ruling — the second of its kind — claims his appointment was unconstitutional and invalid.
“A second appeals court has joined the D.C. Circuit in ruling that President Barack Obama’s recess appointments to the National Labor Relations Board were unconstitutional, concluding that some board actions taken in the wake of those appointments were also invalid,” POLITICO reports.
“The issue has far-reaching implications for both the NLRB and other boards, including Obama’s Consumer Financial Protection Bureau, which has been a frequent target of conservatives and whose director was a recess appointment,” the report adds.
The U.S. Court of Appeals for the Third Circuit ruled 2-1 Thursday that recess appointments can only be made between sessions of the Senate, not any time the Senate is away on a break (such as during “pro forma” sessions).
This is basically the same ruling as the one handed down by D.C. Circuit Court in January.
“The 3rd Circuit case centered on decisions the NLRB made on the authority of three members including Craig Becker, who was appointed by the president on March 27, 2010, while the Senate was adjourned for two weeks,” POLITICO explains.
“The case was brought by a New Jersey nursing and rehabilitation center whose nurses were allowed to form a union by one such NLRB decision. The facility, New Vista, contended that the board’s decision was invalid because it did not have enough members active when the decision was issued because the naming of Becker to the board was not a valid recess appointment,” the report adds.
The labor board has five seats and needs at least three sitting members to conduct business. At the time of the New Vista ruling, it had the minimum of three, but one member was Becker, the recess appointee. Therefore, according to the 3rd Circuit, the New Vista ruling is invalid.
Becker is no longer on the board
“The opinion, written by Judge D. Brooks Smith, said the recess clause of the Constitution should be read not just to give the president executive power, but also to preserve the ‘advice and consent’ role of the Senate,” POLITICO notes.
“In his dissent, Judge Joseph. A Greenaway Jr. said the majority’s reading of the clause was needlessly narrow and ignored the Founding Fathers’ intent to give the president the ability to act when the Senate is not available to ‘advise and consent,’” the report adds.
The ruling today comes one month after the Obama administration petitioned the D.C. circuit court to overturn its January decision.
Here’s a copy of today’s ruling:
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The Associated Press contributed to this report.