Obama recess appointments to labor board ruled unconstitutional

A federal appeals court ruled Friday that President Obama’s controversial recess appointments to the National Labor Relations Board (NLRB) were unconstitutional.

In a 47-page opinion for Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit ruled Obama ignored the Senate’s “advise and consent” role by making three appointments to the labor board while the Senate was in session.

{mosads}The ruling, which the administration is expected to appeal, casts serious doubt on the legality of all the actions taken by the NLRB since Obama recess-appointed Sharon Block, Terence Flynn and Richard Griffin in January 2011. 

It also threatens the president’s recess appointment of Richard Cordray to serve as director of the Consumer Financial Protection Bureau (CFPB). The same day he made the NLRB picks, Obama appointed Cordray to that position after GOP opposition blocked his confirmation.

“This decision now casts serious doubt on whether the president’s ‘recess’ appointment of Richard Cordray … which the president announced at the same time, is constitutional,” Senate Minority Leader Mitch McConnell (R-Ky.) said in a statement.

On Thursday, the president renominated Cordray for the director position, calling on the Senate to finally confirm him. Cordray’s appointment has been challenged in a separate case, which also questions the constitutionality of other provisions of the Dodd-Frank financial reform law.

White House press secretary Jay Carney insisted Friday that the ruling would not affect the board’s operations. 

“We respectfully disagree with this decision,” Carney said. “Our disagreement with this is respectful, but it is strong.”

Carney referred other questions to the Justice Department. 

The White House had argued that the Senate was in recess because it was only holding pro forma sessions at the time of the appointments. The White House said the pro forma sessions did not constitute the Senate being in session.

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace joined in the case last year, arguing the president’s recess appointments were not legal. A group of GOP senators and Speaker John Boehner (R-Ohio) also had lawyers file briefs saying the recess appointments were unconstitutional.

“We warned last year that by appointing these members to the NLRB in such a controversial fashion, the president placed a cloud of uncertainty over the agency and its work. The D.C. Circuit’s historic decision has confirmed our concerns,” said Tom Donohue, the Chamber’s president and CEO, in a statement. “The U.S. Chamber has been proud to stand with our member Noel Canning from the beginning, and they will continue to enjoy our full support and backing.”

NLRB Chairman Mark Pearce said the labor board disagrees with the court ruling. 

“The Board respectfully disagrees with today’s decision and believes that the president’s position in the matter will ultimately be upheld,” Pearce said in a statement. “In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

Republicans applauded the court ruling, while the AFL-CIO criticized what it said was a “radical” decision.

“We fully expect this radical decision to be reversed, and that other courts addressing this issue will uphold the president’s recess-appointment authority. In the meantime, the appointees to the National Labor Relations Board remain in their jobs and the NLRB remains open for business,” said AFL-CIO President Richard Trumka in a statement. “The rights protected by this agency are too important for the agency to have to operate under a legal cloud. We urge the Senate to promptly confirm a package of nominees to the NLRB.”

Sen. Orrin Hatch (R-Utah) and other Republicans said the court had rightly rejected the administration’s flawed reasoning with the appointments. 

“With this ruling, the D.C. Circuit has soundly rejected the Obama administration’s flimsy interpretation of the law, and will go a long way toward restoring the constitutional separation of powers,” Hatch said in a statement.

Sen. Lamar Alexander (R-Tenn.), ranking member on the Senate Health, Education, Labor and Pensions Committee, said the remaining two recess appointees on the NLRB should resign now in the wake of the court ruling.The NLRB has become a chief battleground over labor rights ever since Obama took office. 

Without the president making the recess appointments last year, the board wouldn’t have had enough members for a quorum, preventing it from taking action.

The White House has been frustrated with how difficult it has become to successfully nominate members to the board. 

Republicans in the Senate have blocked several nominees, arguing the board has shown a pro-union bias during Obama’s presidency.

Peter Schroeder and Amie Parnes contributed to this story.

This story was posted at 11:39 a.m. and last updated at 3:49 p.m.