Today, the United States Court of Appeals for the District of Columbia Circuit held that President Obama’s recess appointment of NLRB Members Block, Flynn and Griffin were unconstitutional because the vacancies which they filled did not arise during “the Recess” of the Senate and the appointments were not made during “the Recess”. The court held that recess appointments must be made in the Recess between Congressional Sessions and not when Congress is merely on a break. Furthermore, the court held the vacancies which can be filled by a recess appointment between Sessions, must have come to pass or arisen during the recess between Congressional Sessions. The President’s appointments of Members Block, Flynn and Griffin all fail on both requirements. As a result, with only two Members, the NLRB does not have a quorum to render decisions.
It is not clear what the effect of this ruling will have on cases that have already been decided by this constitutionally defective NLRB nor whether the Supreme Court will agree to hear an appeal of this case.
Check back to our blog for more coverage of this issue as it develops.