WASHINGTON — A second federal appeals court has found President Obama exceeded his power when he bypassed the Senate to install a member to the National Labor Relations Board (NLRB).
The ruling by the 3rd Circuit U.S. Court of Appeals in Philadelphia came on the same day a Senate panel considered a slate of five nominees for full terms on the board. Senate Republicans said Thursday they would oppose two of the nominees — Sharon Block and Richard Griffin — because they sit on the board as recess appointments.
In its 2-1 decision, the court said that under the Constitution, recess appointments can be made only between sessions of the Senate, not when the Senate is on break.
The court’s action mirrors a far-reaching ruling by the U.S. Court of Appeals in Washington, D.C., earlier this year. The Obama administration has appealed that ruling to the Supreme Court, arguing that such an interpretation would invalidate hundreds of recess appointments made by presidents over more than 100 years.
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The latest ruling says Obama had no authority to install attorney Craig Becker to the labor board in 2010 while the Senate was adjourned for two weeks. Becker is no longer on the board.
The White House declined to comment Thursday.
Both rulings have threatened to throw the labor board, the Consumer Financial Protection Board and other federal agencies with recess appointees into chaos. If they stand, hundreds of decisions by these agencies could be thrown out, reaching back several years.
Tennessee Sen. Lamar Alexander, senior Republican on the Senate Health, Education, Labor and Pensions Committee, said Thursday he would not consider Block and Griffin because they refused to step down from the board after the D.C. court ruled they were unconstitutionally appointed.
Democrats on the panel accused Republicans of obstructionism because the GOP and its business allies have been unhappy with union-friendly decisions issued by the board during Obama’s administration.
Unions warn that unless the nominees are confirmed soon, the board will be unable to function. It only has three members now, and the term of Chairman Mark Pearce expires in August.
The strong dissent in the 3rd Circuit case makes it more likely the Supreme Court will decide to take up the issue when its new term begins in the fall, said Carl Tobias, a law professor.
More than 100 companies have appealed NLRB decisions this year, arguing that the board does not have enough validly appointed members to conduct business.