Obama’s Recess Appointments are Constitutionally Invalid

Video is from The Federalist Society

On January 4, 2012, President Barack Obama announced “recess appointments” of three members of the National Labor Relations Board and of Richard Cordray as Director of the Consumer Financial Protection Bureau. These appointments are controversial because the United States Senate was by its own rules not then in recess, but was conducting pro forma sessions every three days. Several appeals from NLRB decisions by panels that included recess appointees were filed, challenging their recess appointments as unconstitutional, and the Cordray appointment has been challenged in litigation over the Dodd-Frank Act, which established the CFPB. On January 25, 2013, in Noel Canning v. NLRB, the D.C. Circuit held that the NLRB recess appointments are constitutionally invalid because they were not made, and did not fill vacancies that occurred, during an intersession recess of the Senate. On May 16, 2013, in NLRB v. New Vista Nursing, the Third Circuit held that an earlier recess appointment to the NLRB was constitutionally void because it was made during an intra-session rather than intersession recess. These decisions are contrary to a 2004 Eleventh Circuit decision and put in doubt hundreds of recess appointments made during the last five presidential administrations. Consequently, on June 24, 2013, the U.S. Supreme Court granted certiorari in Noel Canning. The panelists discuss the legal and practical arguments for and against affirming the D.C. Circuit’s judgment.

The Labor & Employment Law Practice Group hosted this panel on “Recess Appointments: Implications of Noel Canning” on Thursday, November 14, during the 2013 National Lawyers Convention.

–Mr. John Elwood, Partner, Vinson & Elkins LLP
–Mr. Noel J. Francisco, Partner, Jones Day
–Prof. John N. Raudabaugh, Reed Larson Professor of Labor Law, Ave Maria School of Law; former member,National Labor Relations Board and Staff Attorney, National Right To Work Legal Defense Foundation
–Ms. Elizabeth B. Wydra, Chief Counsel, Constitutional Accountablity Center
–Moderator: Hon. Raymond M. Kethledge, United States Court of Appeals, Sixth Circuit

Landmark Legal Foundation filed a brief with the Supreme Court on November 21, 2013 challenging Obama’s use of the recess appointment power when the Senate is still in session. Landmark’s brief at the circuit court was the basis for that Court ruling against Obama’s unconstitutional NLRB appointments.
Click here to read Landmark’s brief

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