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.