Is the National Labor Relations Board Operating Illegally?

Last month the U.S. Court of Appeals for the District of Columbia Circuit found President Barack Obama’s three purported recess appointments to the National Labor Relations Board (NLRB) to be unconstitutional because the Senate was not in fact in recess at the time those appointments were made. Because the five-member NLRB needs at least three legitimate members in order to conduct business, the D.C. Circuit ruling called into question the validity of every action the board has taken since Obama made those questionable appointments in January 2012.

For its part, the NLRB merely shrugged the ruling off, saying it “respectfully disagrees” with the D.C. Circuit and will continue with business as usual since “the President’s position in the matter will ultimately be upheld.”

It is indeed possible that Obama's actions may be upheld by the U.S. Supreme Court, given that body's less-than-pristine record as a check against executive overreach. But that possibility does not mean the NLRB can pretend the D.C. Circuit’s ruling didn’t happen in the first place. To that end, as Sean Higgins reported on Friday in The Washington Examiner, the D.C. Circuit is now taking some additional steps against the NLRB. As Higgins wrote:

The U.S. Court of Appeals for the District of Columbia today ordered the National Labor Relations Board to respond to a petition by a pro-business group that it suspend any further action in a Rhode Island case.... Should the court grant the petition, it could force the NLRB to cease all activity.

“We are not asking the court to shut down the Board, but it may have that effect. If the court shuts down the NLRB in this case, why not another other case? This will open the door for challenges in the other cases that have the potential to be invalidated by the court’s decision last month,” said Anthony Riedel, spokesman for the National Right To Work Legal Defense Foundation, which filed the petition.

In the meantime, all eyes are on the Obama administration, which has not yet announced whether it will ask a full panel of the D.C. Circuit to rehear the case or will simply appeal the ruling straight to the Supreme Court, which will almost certainly agree to take it.

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  • Virginian||

    Hasn't it always operated illegally?

  • Gilbert Martin||

    Indeed it has - since the federal government never had any legitimate Constitutional authority to ever create any such entity to begin with.

  • sarcasmic||

    The court has made its ruling. Now let them enforce it.

  • R C Dean||

    Unless and until the court's decision is stayed, it is in effect, and the NLRB lacks a quorum and certainly can't do business from the day of the decision forward. Just saying "Eh, we disagree, screw you." without getting a stay of the decision shouldn't fly, and in a country with rule-of-law would result in some people doing time for contempt of court.

    Now, the retroactive application of the court's decision to other actions the NLRB may have taken (that is, actions not before the court) gets a little sticky, at least until all appeals are exhausted and a final decision is reached.

  • Adam330||

    The DC Circuit's decision applies only to the case before it. There may be a good argument that the holding applies to other future and past cases because they are factually indistinguishable, but those cases aren't before the court. The board will likely argue they are distinguishable, and then the court can rule on those cases.

  • Night Elf Mohawk||

    If the members were appointed unconstitutionally, they were appointed unconstitutionally for all cases.

    The holding doesn't apply based on the facts of any particular case, it applies based on the facts of the appointments themselves.

  • ||


  • Adam330||

    the court's jurisdiction applies to the case before it, not to other future cases not yet filed.

  • Night Elf Mohawk||

    No one is talking about jurisdiction here. Any potential defendants would not argue that the court doesn't have jurisdiction; they'd be glad that the court has jurisdiction.

    And the defendants will respond to the action with something like "Per this Court's decision in Canning v. NLRB, the NLRB is acting without authority and this case should therefore be dismissed."

  • Adam330||

    We certainly are talking about jurisdiction. RC Dean said that the government is at risk of contempt by proceeding with other cases. The court's power of contempt for defying a ruling only extends to a case in which it issued a ruling, and a party is then defying it. It doesn't extend to other future cases where the court's holding in a prior case arguably applies.

  • ||

    If those appointments were made unconstitutionally then any case the NLRB made decisions on is null and void from the time of the appointments until such time a higher court overturns the Appellate courts decision.

  • Adam330||

    No, they are not. You apparently weren't paying attention in your federal courts class in law school. Only the NRLB decision at issue in the case the DC circuit was considering is invalid. The decision is from the DC Circuit and is only binding within that circuit. The NRLB can seek enforcement of its orders in any of the 12 regional circuits, and it may well get a different decision from another circuit, which would then be binding within that circuit. We'd then have a 'circuit split,' which isn't uncommon.

  • LTC(ret) John||

    "Don't you know who we work for? The Lightbringer, man. So, since were on a mission for HIM, we fart on your so called 'decision'"!

  • Fist of Etiquette||

    Shouldn't parties dealing with the NLRB now simply ignore any of its rulings as invalid?

  • Night Elf Mohawk||

    "Get back to us when you have a legal quorum."

  • thom||

    Yes. If you look at the NLRB's website they claim to enforce their orders through litigation in the US Court of Appeals, the same court they have chosen to ignore.

  • Adam330||

    There are actually 12 circuit courts. The DC Circuit, that one that issued this decision, is only one.

  • thom||

    Do the individual circuit courts usually do business with entities that are openly contemptuous of the other ones?

  • Adam330||

    I don't know what you're talking about, but the other circuit courts are not bound by the precedent of the DC Circuit.

  • thom||

    That you are missing my point so broadly makes me believe you are probably a lawyer.

  • ||

    That would be awesome if they said "No quorum, no deal. Now fuck off before someone drops a house on YOU!".

  • RPR2||

    as a taxpayer, I find the NLRB's position intriguing, and I would like to subscribe to their newsletter.

  • Almanian!||

    1) "Is the National Labor Relations Board Operating Illegally?" Yes.
    2) Fuck the NLRB.
    3) Fuck Michigan.
    4) Also, fried chicken.

    That is all.

  • Night Elf Mohawk||

    One of those is not like the others.

  • wareagle||

    why is the NLRB operating at all?

  • Sevo||

    And if I "respectfully disagree" with a court ruling saying I should be in jail, I guess that's all right?

  • itsnotmeitsyou||

    Yeah, that's what I was thinking.

    If any of us were to tell ANY judge, let alone a federal judge that we "respectfully disagree" and continued operating as though the decision had never been handed down, we'd be spending a good deal of time in federal prison.

    Contempt of court is a bitch, unless Daddy's got your back.

  • mad libertarian guy||

    Is the National Labor Relations Board Operating Illegally?

    Almost certainly.

  • Redmanfms||

    Is the National Labor Relations Board Operating Illegally?

    Is water wet?

    Is the Pope Catholic?

    Is the Space Pope Reptilian?

    Is the atomic weight of cobalt 58.9?

  • Oak Bridge Consulting||

    I don't think anyone has to right to speak against NLRB just because of their meeting schedules. NLRB is an organization which is in welfare of the labour from years and has several labour laws
    for the benefit of both the employer and employee. There is definitely some misunderstanding regarding the issue. Hope it will get resolved soon.


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