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NLRB Recess Appointments Unconstitutional

NLRB Recess Appointments Unconstitutional

1/29/2013

 

On Friday, the United States Court of Appeals for the D.C. Circuit held the purported recess appointment of three members of the National Labor Relations Board (NLRB) was unconstitutional. As a result, the NLRB lacked a quorum to properly issue the order at issue. The court held that the power to make recess appointments is limited to vacancies that occur, and are filled, during intersession breaks in Congress. The decision in Noel Canning v. NLRB provides grounds for overturning all NLRB orders or rulemakings after Jan. 4, 2012, if brought within the D.C. Circuit. Similar arguments are expected to be heard in several other appellate circuits. The government is expected to appeal the decision.