In Noel Canning v. National Labor Relations Board (D.C. Cir., Jan. 25, 2013, 12-1115) 2013 WL 276024, the Court of Appeals for the D.C. Circuit ruled President Obama's January 4, 2012 recess appointments to the National Labor Relations Board were unconstitutional. As a result, the NLRB's decisions since that time are now being called into question and may be unenforceable.
The Recess Appointments Clause is part of the federal Constitution. It says, "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." This case was about what counts as "the Recess of the Senate" and what does not, with the President arguing the Senate was in recess on January 4, 2012 and the petitioner arguing it was not. Ultimately, the Court decided the Senate was not recess, reasoning that "The Recess" means only breaks between official sessions of Congress and not other breaks during a session. As a result, the Court found the Senate was not in recess on January 4, 2012 and the President's appointments to NLRB are therefore invalid.
The affects of the decision on unclear. The NLRB's official position is that the ruling only applies in one case. However, others believe it calls into question most of the NLRB's 2012 decisions, including several involving social media.
