FLASHBACK – National Labor Relations Board Appointments – Unconstitutional

US Constitution

Flashback to the Courts’ decision that the appointments to the National Labor Relations Board were unconstitutional.  First published at rednationrising.us, FourCornersUSA brings you our first court case discussion for our “Court” corner.  Our second “Court” corner post will be a tribute to the Landmark Legal Foundation for their Constitutional work on this case.


On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit decided appointments Barack Obama made to the National Labor Relations Board were unconstitutional.  Arguments were made by the Landmark Legal Foundation (“Landmark”) in conjunction with the National Right to Work Legal Defense Foundation, an amicus curiae (friend of the court) in support of Noel Canning, a bottling company in Washington, under the Recess Appointments Clause of the Constitution.  Landmark’s President Mark R. Levin stated it best in their January 25, 2013 press release:

“We’re very pleased that the Court agreed with our position that no President is above the law…This President doesn’t get to tear up and toss aside the Constitution just because he disagrees with the limitations it imposes on him.” {emphasis added}

Decision’s Impacts

The effect of the Court’s ruling heaves hundreds of Board decisions into disarray. Numerous NLRB decisions are pending in other circuit courts.  The NRLB continues to issue decisions despite the court’s ruling the appointments were unconstitutional.

The House of Representatives has pending legislation to restrict the NRLB until Senate confirmation of appointments, a Supreme Court ruling on the Canning decision or recess of the current Congressional session.

Other cases challenging the NLRB recess appointments are pending in other circuits and it is likely that these cases will produce results contrary to the decision in Noel Canning.


In 1935, Congress enacted the National Labor Relations Act (“NLRA”) to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.”  The National Labor Relations Board (“NLRB”) hears cases involving alleged violation of the NLRA and issues administrative rulings.  Each of the five board members and its General Counsel are appointed by the President and confirmed by the U.S. Senate.


The Canning case had two parties, one intervening party (the Teamsters Union) and three amici curiae.  Amici curiae, or friends of the court, present essential legal arguments not presented by one of the parties.  The three amici curiae in this case were the Senate Republican Leader Mitch McConnell and 41 other members of the U.S. Senate, the Speaker of the House John Boehner (represented by the ACLJ, the same organization trying to free Christian Pastor Saeed from an Iranian prison), and the Landmark Legal Foundation (“Landmark”), a nonprofit public interest law firm that submitted its brief in support of Canning.  The crux of the court’s decision is based on Constitutional arguments advanced by Landmark!

Discussion of Court’s Ruling

There are two parts of review for the Court of Appeals in this case. The first is the underlying statutory (state law) arguments raised by Canning. The second are the constitutional arguments brought forward by Landmark in their amicus brief.  If the Court were to rule in favor of Canning on the statutory arguments, they would not take up the constitutional arguments raised by Landmark.

Canning’s Statutory Arguments

On February 8, 2012, the NLRB administrative law judge (“ALJ”) ruled against Canning, determined they had violated the NLRA and issued an administrative order to enforce a collective bargaining agreement.  Canning appealed to the NLRB Board, and a three-member panel upheld the ALJ’s finding.  Canning then appealed to the Court of Appeals arguing (1) no collective bargaining agreement had been reached, and (2) even if the court determines there was an agreement reached, it was unenforceable under Washington state law.  Canning did not prevail on either of these premises. 

Landmark’s Constitutional Arguments

Landmark raised two Constitutional arguments in support of Canning. The first argument was that the appointments Obama made were unconstitutional because they were not confirmed by the U.S. Senate.  Instead Obama claimed the Senate was in recess and that he had the authority to make the emergency appointments without confirmation.  It’s important to note that two of the three seats were vacant since August 27, 2010.  Landmark’s second argument was that the NLRB decision must be invalidated because two out of five members is not a quorum.

The appellate court ruled that all three of Obama’s appointments, made one day after Congress began a new session, were unconstitutional because the U.S. Senate was not in recess, thus Obama was barred from making emergency appointments.

The most fascinating part of the Court’s analysis came down to the meaning of “the” as used in ‘the Recess’ and ‘happen’, both as they occur in the Recess Appointments Clause of the Constitution (“Clause”).  The Clause provides for “vacancies that may happen during the Recess of the Senate.” {emphasis added}  Landmark argued that the Clause specifically referred to vacancies that occurred, not existed, only when the Senate was in official recess, while Obama argued he could make appointments, without Senate confirmation during any time the Senate took a break in business, for any vacancies, without regard to when they occurred.  The Court of Appeals vehemently disagreed with Obama, ruled the appointments unconstitutional and vacated the NLRB’s decision against Canning.

In the ruling, Chief Judge David Sentelle stated:

“Allowing the president to define the scope of his own appointment power would eviscerate the Constitution’s separation of powers.”

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