Heartland Institute Experts React to Court Ruling Invalidating NLRB Recess Appointments

January 25, 2013

The D.C. Circuit Court of Appeals today ruled invalid three appointments to the National Labor Relations Board made by President Barack Obama on January 4, 2012. Presidents have the power to make so-called “recess” appointments under the Constitution only when the Senate is officially on “the Recess.” The president claimed recess appointment powers because the Senate was on a holiday break. But under the Constitution only the Senate can declare itself on “the Recess,” the court held. Because the Senate had not done so as of that date, the appointments are unconstitutional. The National Labor Relations Board thus lacked a quorum, invalidating hundreds of decisions made in the past year.

The following statements from public policy experts at The Heartland Institute – a free-market think tank – may be used for attribution. For more comments, refer to the contact information below. To book a Heartland guest on your program, please contact Director of Communications Jim Lakely at jlakely@heartland.org and 312/377-4000 or (cell) 312/731-9364.

“The court decision today invalidates President Obama’s appointment of three members to the National Labor Relations Board on January 4, 2012. This means the Board lacked a quorum and all of its decisions in the past year are invalid. There are hundreds of them. The decision will likely be appealed, but in the meantime this court decision is a victory for the rule of law. Words in the Constitution have meaning, the court held. Recess means recess, and vacations don’t count.”

Maureen Martin
Senior Fellow for Legal Affairs
The Heartland Institute

“The prestigious D.C. Circuit U.S. Court of Appeals ruled today that Obama acted unconstitutionally in brazenly asserting the power to make recess appointments when the Congress is not in recess, bypassing the legal requirement for Senate confirmation of senior executive branch officials. This shows how dangerously close to Hugo Chavez-style Third World authoritarianism America is today.”

Peter Ferrara
Senior Fellow for Entitlement and Budget Policy
The Heartland Institute

“In the law schools and in public discourse, it has of late been the fashion to interpret words and phrases in the Constitution in isolation in order to advance the political or public policy goals of the speaker. Thus advocates of free and open access to guns tend to ignore the ‘Militia’ preamble to the Second Amendment while those who favor greater gun control tend to ignore the phrase ‘the right of the people’ (not the Militia) to keep and bear arms. Similarly, advocates of unilaterally raising the national debt ceiling point to the phrase in Section 4 of Amendment XIV that ‘the validity of the public debt of the United States … shall not be questioned’ without analyzing its historical or structural context.

“It is therefore refreshing to see that the D.C. Circuit has taken a holistic approach to Constitutional interpretation in the Canning case, examining the entire structure and history of the Constitution to determine – ultimately – the meaning of just two words: ‘the Recess.’

“Perhaps the Supreme Court will have the last word on whether the Canning court reached the correct conclusion, but the D.C. Circuit’s reasoning process should be saluted.”

David L. Applegate
Policy Advisor, Legal Affairs
The Heartland Institute

The Heartland Institute is a 29-year-old national nonprofit organization headquartered in Chicago, Illinois. Its mission is to discover, develop, and promote free-market solutions to social and economic problems. For more information, visit our Web site or call 312/377-4000.