D.C. Circuit declares NLRB recess appointees unconstitutional, potentially invalidating major NLRB decisions from 2012

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit declared that President Barack Obama’s three recess appointments to the five-member National Labor Relations Board (NLRB) were unconstitutional. Noel Canning v. Nat’l Labor Relations Board, No. 12-1115. In its decision, prompted by a canning company’s lawsuit challenging an NLRB ruling, the court of appeals held that President Obama’s appointments of Sharon Block, Terence Flynn, and Richard Griffin were “invalid from their inception,” because they were not made during the “the Recess” of the Senate and did not “happen” during such a recess, as the Constitution requires. Because the NLRB lacked a proper quorum, the opinion’s author Chief Judge David Sentelle explained, the NLRB lacked the authority to issue any order.

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