Today, the Third Circuit Court of Appeals in Philadelphia set aside an order of the NLRB on the grounds that one of the members (Craig Becker) of a three-member panel that issued the order was not validly appointed to the Board. By a 2-1 vote, the Court of Appeals held in NLRB v. New Vista Nursing & Rehabilitation, that Becker’s intrasession appointment by President Obama in 2010 violated the Constitution’s “Recess Appointments Clause.”  The Third Circuit thus joins the D.C. Circuit in invalidating a recess appointment to the NLRB.  Taken together, these decisions effectively invalidate four recent appointments to the Board (Block, Becker, Flynn, Griffin). By ruling that Member Becker’s appointment was invalid, the Third Circuit’s decision expands the scope of controversial Board case law (including D.R. Horton, among others) that may be challenged on the grounds that it was not issued by a panel of three properly appointed members.

Although, like the D.C. Circuit in Noel Canning, the Third Circuit canvassed the historical record to aid its interpretation, the Third Circuit majority ultimately differed with the D.C. Circuit’s reasoning for declaring intrasession appointments unconstitutional. In contrast to the D.C. Circuit, the Third Circuit did not find the use of the definite article “the” in the phrase “the Recess of the Senate” to conclusively support intersession recess appointments. Rather, among other arguments, the Third Circuit construed the recess appointment power as an exception to the related (but separate) “Appointments Clause” of the Constitution, which enshrines power-sharing that includes the advice-and-consent power of the Senate. The Third Circuit rejected the Board’s “unavailable-for-business” definition of “recess.” That definition would be met by the Senate “whenever its members leave for the weekend, go home for the evening, or even take a break for lunch.” (Opinion, p. 64) It also would destroy the separation of powers.

The Third Circuit majority also rebuffed the argument that it was deciding a “political question” and somehow denigrating the president: “Defining recess in the Recess Appointments Clause does not express a lack of respect for coordinate branches of government because defining the word is merely an exercise of our judicial authority ‘to say what the law is,’ which sometimes requires an evaluation of whether one branch is aggrandizing its power at another‘s expense.” (Opinion, p. 24 n.5)

That New Vista Nursing & Rehabilitation was issued on the same day that the Senate begins confirmation hearings on a package of NLRB nominations (including two that were found to be unconstitutionally appointed in Noel Canning) is fortuitous. But it does raise the stakes of those hearings. And the stage is now set for what seems to be an inevitable review by the United States Supreme Court. The Board has urged the high Court to consider and reverse the D.C. Circuit’s Noel Canning decision. Now, the Third Circuit’s divided opinion in New Vista Nursing & Rehabilitation, with Circuit Judge Greenaway, Jr. (and Obama nominee) in dissent, will only increase the pressure on the Supreme Court to resolve the constitutional questions raised by these cases. Until then, the Board appears to be determined to continue to operate, though its legitimacy as currently constituted is in serious doubt.