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Republicans Call for NLRB to Shut Down in Wake of Court Ruling on Appointees

Senate Republicans won an important victory over President Barack Obama on Friday, when a federal appeals court ruled that his appointments to the National Labor Relations Board a year ago were unconstitutional. GOP lawmakers quickly responded by calling for the appointees to resign and for the board to shut down.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled 3-0 that Obama overstepped his constitutional authority when he made three appointments to the NLRB while the Senate was on a holiday break in January 2012.

The Constitution permits the president to make appointments while the Senate stands in recess. During the period in question, however, the Senate was meeting in a series of pro-forma sessions — which Republicans had insisted on specifically to prevent Obama from making appointments — and thus was not technically in recess, Chief Judge David B. Sentelle wrote for the majority.

“We hold that ‘the recess’ is limited to intersession recesses,” Sentelle wrote, adding that “the appointments structure would have been turned upside down if the president could make appointments any time the Senate so much as broke for lunch.”

The White House rejected the court ruling on Friday.

“The decision is novel and unprecedented,” White House spokesman Jay Carney said. “It contradicts 150 years of practice by Democratic and Republican administrations.” According to the Congressional Research Service, he said, presidents have made more than 280 recess appointments since 1867.

The court case was brought by Noel Canning, a small bottling company in Washington state, that sued the NLRB. The labor board had determined that the company had not bargained in good faith with the union representing its employees. But Noel Canning countered that the NLRB’s ruling should not be upheld because the agency’s three recess appointees were not valid members. Last September, 42 Senate Republicans filed an amicus brief in the case on behalf of Noel Canning.

Republicans in both chambers praised Friday’s court decision. Sen. Lamar Alexander, R-Tenn., and Rep. Darrell Issa, R-Calif., called for the resignation of the NLRB appointees in question.

“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,” Alexander, the new ranking member on the Senate Health, Education, Labor and Pensions Committee, said in a statement.

House Education and the Workforce Chairman John Kline, R-Minn., called for the board to “cease all activity until qualified nominees have been constitutionally appointed.”

But Democrats rejected those suggestions. Senate HELP Chairman Tom Harkin, D-Iowa, urged the board to continue operating “until or unless” the Supreme Court rules on the issue. He called Friday’s decision a “radical departure from precedent,” adding that throughout Obama’s presidency, Republicans have used partisan delay tactics and filibusters to prevent the confirmation of nominees.

“Republicans have made clear that they are willing to disrupt the basic functions of government to stop the NLRB from carrying out its congressionally mandated function to defend the rights of workers,” Harkin said.

Appeal Considered Likely

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