Supreme Court: President Obama botched those NLRB recess appointments

In a unanimous opinion delivered yesterday (here) in NLRB v. Noel Canning, the Supreme Court concluded that President Obama’s so-called “recess appointments” of three of the five members of the National Labor Relations Board between the Senate’s January 3 and January 6 pro forma sessions were unconstitutional.

Amy Howe from SCOTUSblog.com summarized the decision “in plain english”:

“[A]ny recess that is shorter than three days is not long enough to make a recess appointment necessary. And a recess that is longer than three days but shorter than ten days will, in the normal case, also be too short to necessitate a recess appointment.”

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“[T]he Senate can prevent the president from making recess appointments even during its longer recesses by holding “pro forma” sessions – that is, sessions at which no work actually gets done – every three days.”

So, there you have it. The net effect of this opinion is that any NLRB decision rendered with the three improperly-appointed NLRB members is void of lack of a quorum. (Previously, the Supreme Court held here that the Board is powerless to rule with less than a quorum of three members). Although, with a full quorum now, you’d expect that those case would eventually be affirmed.

For more on the Court’s decision on NLRB v. Noel Canning check out:

• Josh Gerstein at Politico with “Barack Obama’s recess gamble goes bust“
• Statement of NLRB Chairman Mark Gaston Pearce on the Supreme Court’s Noel Canning Decision
• Steven Greenhouse and Adam Liptak at NYTimes.com with “Impact of the Court’s Ruling on Recess Appointments“