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Noel Canning V NLRB: D.C. Circuit Holds NLRB Recess Appointments Unconstitutional

January 30, 2013

By ZACHARY D. FASMAN & TODD C. DUFFIELD

On January 25, 2013, the District of Columbia Circuit ruled that President Obamas appointment of three individuals to the NLRB a year earlier exceeded his powers under the Constitution. The case interprets the Recess appointments clause literally, and very narrowly, and concludes that the agency lacks a quorum and is unable to conduct business. Indeed, the decisions interpretation of the Recess appointments clause is narrow enough to call into question most if not all prior recess appointments, and could invalidate not merely decisions involving the most recent recess appointees but prior rulings issued by the NLRB when other recess appointees formed the Boards three person quorum. The decision surely will be appealed to the Supreme Court by the Administration, but unless overturned is of enormous significance to the practice of labor law.

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