“Shocking” Recess Appointment Decision By Republican Judges Will Be Appealed

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A penal of three Republican judges today knocked down the President’s three recess appointments last year to the National Labor Relations Board. The President appointed the three NLRB members following Republican filibusters of his nominees, intended to keep the agency from operating to protect the rights of working people to organize. This decision, if upheld, could invalidate hundreds of NLRB decisions.

The Obama administration will likely appeal the decision. Note that there were several similar decisions knocking down and supporting the Presidents health care reform act before it was finally upheld by the Supreme Court.

The ruling by the three judges might also invalidate Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, after Republicans also filibustered his nomination in an attempt to kep that agency from operating to protect consumers. Republicans claim the ruling should also invalidate all of the consumer protections the agency has announced.

President Obama made these appointments following Senate Republican filibusters of these and other nominees, some of the more-than-380 filibusters by Senate Republicans in the last few years.

Reaction To The Decisions

Tom Donohue of the anti-union Chamber of Commerce business-lobbying organizationissued a statement saying he was “pleased” by the decision.

The blog of the anti-union National Association of Manufacturers business-lobbying organization said this is an “important moment” for “manufacturers that have been forced to deal with increased burdensome regulations.”

Karen Harned, executive director of the National Federation of Independent Business, another business-lobbying organization, said the decision is good because the NLRB is “a pro-union government agency.”

Republicans have claim that the NLRB, whose job is to protect union rights as well as business rights, is “pro-union.”

AFL-CIO President Richard Trumka tweeted, “Fully expect radical DC Circuit decision to be reversed, and that other courts will uphold the President’s recess appointment authority” and in an official statement called the 3-judge panel’s decision “shocking.”

Statement by AFL-CIO President Richard Trumka On Decision by the U.S. Court of Appeals for the District of Columbia Circuit on the NLRB Recess Appointments:

Today’s decision by a panel of Republican judges on the DC Circuit is nothing less than shocking. In a radical and unprecedented decision, the court has interpreted the Constitution in a way that would deprive both Republican and Democratic presidents of a critical tool they have used hundreds of times over the years – including 179 appointments by former President George W. Bush and 139 appointments by former President Clinton – to keep agencies functioning and make the government work. In this case, the affected agency is the National Labor Relations Board – a crucially important agency that enforces workers’ rights.

We strongly disagree with the court’s reasoning and decision. We fully expect this radical decision to be reversed, and that other courts addressing this issue will uphold the President’s recess appointment authority. In the meantime, the appointees to the National Labor Relations Board remain in their jobs and the NLRB remains open for business.

The rights protected by this agency are too important for the agency to have to operate under a legal cloud. We urge the Senate to promptly confirm a package of nominees to the NLRB.

The Judges

Nicole Flatow, writing at the ThinkProgress blog, in BREAKING: Federal Appeals Court Invalidates Obama’s Recess Appointments to NLRB, (click through for links and more),

The opinion is the latest demonstrations of the radical views of Judge David Sentelle, who authored this opinion and has previously suggested that all business, labor and Wall Street regulation is constitutionally suspect.

[. . .] The D.C. Circuit’s opinion, however, goes well beyond this technicality argument to invalidate at least a century of accepted recess appointments procedure. Acknowledging that then-Republican Attorney General Harry M. Daugherty had advised in 1921 that recess appointments constituted breaks of “substantial length,” Sentelle rejects “that practice of more recent vintage” and holds that only breaks between congressional sessions, and not during sessions can be considered a “Recess:”

… Sentelle’s opinion also rejects the ruling of another federal appeals court that such “intersession” appointments are entirely valid. In fact, his originalist analysis focuses only on the text of the clause, and overtly rejects any recent precedent, history, or context that would elucidate modern understanding of the words.

This opinion is the latest reminder of the influence of federal judges, particularly on the powerful U.S. Court of Appeals for the D.C. Circuit. President Obama’s attempts to get a single nominee confirmed to that court have been met with extreme resistance and obstruction — of the same sort that moved Obama to fill several urgent executive branch vacancies through recess appointments.