A federal appeals court has severely limited the executive authority of the President to sidestep the Senate and make temporary recess appointments to fill empty seats in government agencies. The court ruled that President Obama did not have the authority to make three recess appointments last year to the National Labor Relations Board (Board) because the Senate was officially in session - and not in recess - at the time.
The Obama administration is expected to appeal the decision to the U.S. Supreme Court but, if it stands, it means that hundreds of decisions issued by the Board over a period of more than a year are invalid. It also would leave the current Board with just one validly appointed member, effectively shutting it down. The Board is allowed to issue decisions only when it has at least three sitting members. Anyone facing an adverse decision issued by the Board during the time when it did not have three validly-seated members may appeal the ruling against them to the D.C. Circuit.
The appellate court's decision is a success for business groups that have been criticizing the Board for issuing a series of decisions and rules that make it easier for the nation's labor unions to organize new members. "With this ruling, the D.C. Circuit has soundly rejected the Obama administration's flimsy interpretation of the law, and will go a long way toward restoring the constitutional separation of powers," said Sen. Orrin Hatch, R-Utah.
It is anticipated that the Supreme Court will likely take up this issue of first impression because there is no binding authority or precedent on the matter, which may result in a completely original issue of law for decision by the courts. In the interim, uncertainty for businesses covered under the National Labor Relations Act will surely continue to affect employment decisions.