Third Circuit Deems NLRB "Recess Appointments" Unconstitutional
On May 16, 2013, in NLRB v. New Vista Nursing & Rehab., a divided panel of the Court of Appeals for the Third Circuit joined the D.C. Circuit in holding that the Recess Appointments Clause of the Constitution allows the President to make “recess appointments” (that is, without the advice and consent of the Senate) only when the Senate is on a formal intersession recess, as opposed to an intra-session break. Both the Third Circuit’s decision and the D.C. Circuit’s recent decision in Canning v. NLRB (as elaborated upon in Nat’l Ass’n of Mfrs. v. NLRB) arise from actions taken by the National Labor Relations Board (the “Board” or the “NLRB”) some of whose members had been appointed during an intra-session break. To summarize: (1) at least three Board members must participate in a Board decision; (2) according to these courts, the Board has not had three validly-appointed Members since August 27, 2011; and (3) although the NLRB has had four sitting Members between April 5, 2010 and August 27, 2011, it has issued some three-Member decisions during this time wherein one decision-maker, Craig Becker, was arguably unconstitutionally-appointed, rendering those decisions invalid. Potentially hundreds of decisions by the Board over the past three years are at risk of being declared invalid.
As we previously reported on January 31, 2013, and May 13, 2013, the Supreme Court is likely to address what constitutes a valid recess appointment next term in response to a petition filed by the Board in Canning. The Supreme Court will be faced with a Circuit split, as in 2004 the Eleventh Circuit upheld an intra-session appointment of a federal judge under the Recess Appointments Clause.
Summary of the Decision
Like the D.C. Circuit in Canning, the Third Circuit engaged in a historical analysis to conclude that the Constitution’s drafters intended that the President make recess appointments only during an intersession recess of the Senate. The Court rejected the argument that the President could also make these appointments during an intra-session recess of the Senate that lasted a non-negligible length of time (e.g., at least 10 days), or whenever the Senate is “unavailable for business,” the position taken by the Board. The Court found no merit in the argument that what constitutes a “recess” under the Recess Appointments Clause is a “political question” that the courts should refrain from deciding.