On January 25, 2013, the D.C. Circuit Court invalidated President Obama’s three appointments to the National Labor Relations Board. The decision in Canning v. NLRB not only calls into question the “recess appointment” power of the President, but could paralyze the NLRB by putting hundreds of decisions in jeopardy.
Presidents have made so-called recess appointments for decades. The Constitution expressly gives this power to the President, allowing him to fill executive vacancies when the Senate is not in session. President Obama did just that when he named three members to the NLRB in 2012. Some argue that this power is used solely to avoid Senate confirmation (or more likely, rejection) of an appointment. Others argue that it’s just plain necessary.
The D.C. Circuit did not stop at invalidating the NLRB appointments (and an appointment to the Consumer Financial Protection Bureau), but essentially removed the power in its entirety. The ruling effectively held that the Senate was not really in recess when the appointments were made, and that President Obama exceeded his authority in naming the NLRB members at that time. Further, the opinion suggests that true recesses need not ever happen, as the Senate could convene for a few days in a “pro forma” session, effectively putting the kibosh on any future Presidential recess appointments.
Sound melodramatic? It’s not. This is major, folks. What this ruling means from a labor standpoint is that the big decisions the NLRB has put out this past year could be in jeopardy. We’re talking social media policies, blanket confidentiality policies, at-will disclaimers . . . you name it. We wait with baited breath for the inevitable challenge and political tug-of-war that will follow this decision.