The PJ Tatler

NLRB Chief: Don't Worry, Recess Appointments 'Will Ultimately be Upheld'

The chairman of the National Labor Relations Board said he doesn’t believe the D.C. Circuit Court of Appeals finding that President Obama’s recess appointments of three NLRB members will stand.


“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld,” NLRB chairman Mark Gaston Pearce said in a statement. “It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been been raised in more than a dozen cases pending in other courts of appeals.”

“In the meantime, the Board has important work to do,” he added. “The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

But reaction on Capitol Hill was swift and condemning of an overreaching administration.

“I am extremely pleased that a federal appeals court today confirmed what we all knew last year – the President’s attempt to stack the deck at the National Labor Relations Board was unconstitutional,” said Sen. Tim Scott (R-S.C.). “The NLRB was established to be an unbiased arbiter, but the President has turned it into a pro-union, anti-right-to-work organization. As a result, the Board’s activity has, at times, destroyed jobs and hurt hardworking American families, which we saw in South Carolina over the last two years, and cannot be allowed to continue down that path.”

“His power to use recess appointments is not unlimited – and he can’t disregard the U.S. Constitution’s requirements on advice and consent of the Senate,” said Sen. John Barrasso (R-Wyo.), who joined 41 other Republican Senators in filing an amicus brief in the case Noel Canning v. National Labor Relations Board. “Instead of going around Congress and the Constitution, it’s time for the Obama Administration to work with us on nominations.”


The suit was brought by Noel Canning, a family-owned business in Washington state that bottles and distributes soft drinks. The company challenged the NLRB’s determination that it must enter into a collective bargaining agreement with a labor union.

House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) said the appointees should step down while the NLRB puts on the brakes.

“The President, who taught Constitutional law, should’ve known better,” said Issa. “As the Oversight Committee examined in a hearing a year ago, President Obama’s appointments looked like an obvious election-year pander to big labor bosses. Today, we know that it is American workers who are going to pay the price for the Administration’s arrogant miscalculation.”

“Today’s ruling will certainly cause other opinions unconstitutionally issued by the Board to be invalidated,” he continued. “To avoid further damage to the economy, the NLRB must take the responsible course and cease issuing any further opinions until a constitutionally-sound quorum can be established. The unconstitutionally appointed members of the NLRB should do the right thing and step down.”

That demand was echoed in the upper chamber.

“The court has found that the president violated the Constitution when he made these appointments,” said Sen. Lamar Alexander (R-Tenn.). “These individuals should resign from the board immediately, because no decision in which they participate can be valid. This judgment is proof that the administration defied the Constitution’s separation of powers and its concept of checks and balances, which are the guard against an imperial presidency.”


“The court’s ruling today is a sober reminder of how far detached this administration has become from our constitutional heritage and the rule of law,” said Sen. Mike Lee (R-Utah). “By failing to follow the Constitution’s specified procedure for appointing executive officials, the President has created chaos and confusion for the business community, which has been left uncertain as to the validity of the many rules and regulations promulgated by officers that were not appointed according to the Constitution’s requirements.”

“For the same reasons, this decision now casts serious doubt  on whether the President’s ‘recess’ appointment of Richard Cordray to the Consumer Financial Protection Bureau, which the President announced at the same time, is constitutional,” Senate Minority Leader Mitch McConnell (R-Ky.) said.

Obama nominated Cordray yesterday to continue as head of the CFPB.

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