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Court invalidates three appointments to NLRB

January 25, 2013

The U.S. Court of Appeals for the D.C. Circuit today vacated a National Labor Relations Board decision, ruling that the board did not have a quorum at the time because three of its members were not validly appointed. At issue was whether President Obama validly used his recess appointment authority to appoint three members to the board last Jan. 4 without Senate approval. In a unanimous decision, the court held that the president can only make recess appointments for vacancies that arise during an official recess, which it defined as the break between sessions of Congress. "Either the Senate is in session, or it is in recess," Chief Judge David Sentelle wrote. "If it has broken for three days within an ongoing session, it is not in 'the Recess.'" If the ruling stands, it could invalidate all NLRB decisions made since the appointees joined the board.