Second Appeals Court Dings Obama On NLRB “Recess” Appointees

There has been much controversy over President Barack Obama’s “recess” appointments of 3 folks to the National Labor Relations Board in January of 2012.  In January of this year, the Federal Court of Appeals in DC struck down President Obama’s appointments, and the U.S. Court of Appeals of the Third Circuit also found that the appointments were unconstitutional earlier in May.   Congressman Lynn Westmoreland has a piece on the decisions by these courts concerning the appointments made by President Obama:

In the news we’ve seen a constant string of scandals. Each day a new report of the Obama Administration’s disregard for basic civil liberties and an abuse of powers. One scandal the administration just can’t seem to shake is President Obama’s unconstitutional appointments to the National Labor Relations Board (NLRB). A second US Court of Appeals has invalidated Obama’s NLRB “recess” appointments, along with some of the actions the board has taken since these members were appointed.

In January 2012, President Obama made three so-called recess appointments to the controversial NLRB. In order to constitutionally appoint people to the NLRB, the president’s appointees must be approved by the US Senate. Instead, President Obama gave what he claimed was a recess nomination to Sharon Block, Richard Griffin, and Terence Flynn – even though Congress was not in recess. The Senate was in a pro forma session, not a recess. President Obama claimed this pro forma session was considered a ‘recess’ under the Constitution and appointed them anyways. The decisions by the two US Courts of Appeals courts proved otherwise.

In January of 2013, the appointments were challenged and in a unanimous decision by the US Court of Appeals for the District of Columbia, the president’s “recess” appointments were declared unconstitutional earlier this year. Then again in the beginning of May, a 2-1 decision from the U.S. Court of Appeals for the Third Circuit also found the recess appointments unconstitutional. Since the appointments have been declared unconstitutional, all decisions made by the NLRB since the unconstitutional appointments are also unconstitutional. So this whole year for the NLRB was a complete waste of time and money.

Trying these cases in court is bringing to light the president’s misuse of his powers and his disrespect for our Constitution. The role of recess appointments are not meant to be a free pass to do whatever he pleases with his executive powers. It is disappointing that the president of our country, despite teaching Constitutional Law at the University of Chicago Law School, does not seem to have any respect for the Constitution. These court decisions are also bringing attention to President Obama’s other questionable recess appointments, such as Richard Cordray of the Consumer Financial Protection Bureau.

I’m pleased to see this branch of government actually respects and honors the Constitution, and that despite what President Obama thinks, even he is not above the law.


  1. Scott65 says:

    I agree. If this stands it will force Harry Reid’s hand on filibuster reform. The President has a constitutional duty to make appointments and “advise and consent” is not the same as “obstruct”

Comments are closed.