President Barack Obama’s installation of labor board members last year while most senators were out of town was unlawful, a panel of federal judges in Virginia ruled, becoming the third such court to reject his recess appointments.
The 2-1 ruling today by the U.S. Court of Appeals in Richmond comes almost a month after the U.S. Supreme Court said it will hear arguments on whether Obama had authority to appoint three members to the National Labor Relations Board without Senate confirmation.
“We conclude that the president’s three Jan. 4, 2012, appointments to the board are constitutionally infirm, because the appointments were not made during ‘the recess of the Senate,’” Circuit Judge Clyde Hamilton wrote in the majority opinion.
Appeals courts in Washington and Philadelphia earlier ruled that the 2012 appointments and earlier ones were made in violation of the Constitution’s Recess Appointments Clause.
Hamilton, an appointee of Republican President George H.W. Bush, was joined by Judge Allyson Duncan, who was nominated to the court by Republican President George W. Bush.
In a dissent, Judge Albert Diaz, an Obama appointee, said the appointments were lawful because the vacancies existed during a Senate recess.
The Virginia court’s ruling canceled NLRB decisions against two employers who argued the board lacked a legally appointed quorum.
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