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Obama NLRB Appointments Overturned by 3rd Appeals Court

July 17 (Bloomberg) -- President Barack Obama’s installation of labor board members last year while most senators were out of town was unlawful, a panel of federal judges in Virginia ruled, becoming the third such court to reject his recess appointments.

The 2-1 ruling today by the U.S. Court of Appeals in Richmond comes almost a month after the U.S. Supreme Court said it will hear arguments on whether Obama had authority to appoint three members to the National Labor Relations Board without Senate confirmation.

“The president’s three Jan. 4, 2012, appointments to the board are constitutionally infirm, because the appointments were not made during ‘the recess of the Senate,’” U.S. Circuit Judge Clyde Hamilton wrote for the majority.

Appeals courts in Washington and Philadelphia have ruled that the 2012 appointments and earlier ones were made in violation of the Constitution’s Recess Appointments Clause.

Hamilton, an appointee of Republican President George H.W. Bush, was joined by Allyson Duncan, who was nominated to the court by Republican President George W. Bush.

In a dissent, Judge Albert Diaz, an Obama appointee, said the appointments were lawful because the vacancies existed during a Senate recess.

2011 Dispute

The cases arose from a dispute between the administration and congressional Republicans in 2011.

To prevent Obama from making appointments after Congress started a holiday break in December of that year, House and Senate Republicans refused to formally adjourn. The Senate then held pro-forma sessions that sometimes involved a single senator’s appearance in the chamber every third day.

Obama made the appointments Jan. 4, 2012, bypassing Senate confirmation by asserting lawmakers were in recess.

Senate Republicans, who filed a brief supporting the challengers in the Washington case, disagreed.

In today’s decision, the court agreed with the Washington and Philadelphia rulings that recess appointments could only be made in the period between congressional sessions, known as an intersession recess, as opposed to the more frequent breaks that the Senate takes throughout its legislative session.

The court said it couldn’t rely on political gridlock in order to side with the labor board’s argument that the Senate was in recess because no business was conducted for 20 days.

Payroll Tax

“It is the Senate, not the president, who has the privilege of determining the manner in which the Senate meets during a congressional session,” Hamilton wrote, noting that the payroll tax extension legislation was passed on Dec. 23.

The Virginia court’s ruling canceled NLRB decisions against two employers who argued the board lacked a legally appointed quorum.

In a deal with Senate Republicans, Obama yesterday withdrew the names of the two Democratic board members at the center of those appointments. He then named two others. The third appointee, Terence Flynn, stepped down last year.

The lead Richmond case is National Labor Relations Board v. Enterprise Leasing Co.-Southeast LLC, 12-01514, U.S. Court of Appeals for the Fourth Circuit (Richmond). The Washington case is Noel Canning v. National Labor Relations Board, 12-01115, 12-01153, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in the U.S. Court of Appeals in Richmond at tschoenberg@bloomberg.net.

To contact the editor responsible for this story: Andrew Dunn at adunn8@bloomberg.net.

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