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Obama Recess Appointments Ruling May Affect NLRB Decisions

By Deanne Katz, Esq. on January 29, 2013 | Last updated on March 21, 2019

President Barack Obama isn't the first chief executive to make recess appointments to government agencies like the National Labor Relations Board. But if last week's federal appeals court ruling stands, he may be the last.

In general, when the president wants to appoint people to vacant executive posts, he must present his nominees to the Senate for approval. But many presidents have bypassed that process, especially when a nominee faces stiff opposition, by appointing people while the Senate is in recess.

This had gone on for years, until a few of President Obama's recess appointments to the NLRB were challenged in court. A ruling by the D.C. Circuit Court of Appeals has thrown that process into question.

Before we dive into the current decision, it might be good to have a brief constitutional review. The president must appoint executive officials with the advice and approval of the Senate. That much is clear.

The Constitution also allows the president to appoint executives during the Senate's recess when they aren't around to approve nominations. Those nominations expire at the end of the Senate's next term.

The Senate traditionally breaks for recess every August, for a month. But shorter breaks, such as holidays, have also been called "intersession recess" periods.

Presidents have made recess appointments during the August recess and during those smaller intersession breaks. But it's the latter time period that's causing a problem.

Three different companies filed lawsuits to challenge rulings made by the NLRB, according to Reuters. All of the cases allege that NLRB appointees were not legitimate because they were made during a short so-called "recess" period in January 2012.

On Friday, the D.C. Circuit agreed. A three-judge panel determined that the appointments technically weren't made during a "recess," since the January break was outside the traditional August recess. Also, the January break was punctuated by pro forma sessions, designed to thrwart President Obama's recess appointment power.

As a result, the NLRB officials were appointed without constitutional protection, the D.C. Circuit held. The ruling potentially invalidates all decisions the NLRB has made since those 2012 appointments.

Of course, that depends on what happens next. The Justice Department still has the opportunity to appeal the decision to the full eight-judge panel of the D.C. Circuit. The case could also be appealed directly to the U.S. Supreme Court.

The Obama administration still hasn't said what it plans to do next, reports The Business Journal. But it's likely this fight over recess appointments will continue.

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