A 3-judge panel of the United States Court of Appeals for the District of Columbia Circuit handed the Obama administration a major defeat today, ruling that President Obama’s appointment of three members to the National Labor Relations Board last year violated the Appointments Clause of the Constitution, which says that the president “shall 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.”
Here’s a key section from Chief Judge David Sentelle’s majority opinion:
The [National Labor Relatinons] Board 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 omitted.]
The case stemmed from a canning company’s challenge to a NLRB ruling, but the implications stretch well beyond one particular labor dispute. If the Supreme Court lets the D.C. Circuit’s ruling stand, either by upholding it or refusing to hear the inevitable appeal from the Obama administration, nearly a year’s worth of NLRB decisions will be rendered worthless.