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D.C. Circuit holds that President Obama's "recess" appointments to the National Labor Relations Board are constitutionally invalid

The D.C. Circuit ruled that the three January 4, 2012 "recess" appointments by President Obama to the National Labor Relations Board are invalid because they exceeded the scope of his authority under the Recess Appointments Clause. The Court's holding was supported by two grounds, both of which have broad implications for employers. The Court held that recess appointments may be made only during the recess between each Session of Congress -- which happens, at most, only once per year -- rather than breaks occurring during each Session of Congress, i.e. appointments may be made during intersession recesses only. The Court further held that recess appointments can be made to fill only those positions that become vacant during the recess, such that the President cannot make recess appointments to fill preexisting or longstanding vacancies. Judge Griffith concurred, explaining that he joined the Court's opinion on intersession versus intrasession appointments, but would not reach the issue of whether the vacancy must arise during the recess. The Court's decision deprives the Board of a quorum and, according to this Circuit, invalidates decisions issued since January 4, 2012.

Jones Day represented the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace as intervenors in the case, which is a petition for review proceeding filed by Noel Canning, a division of the Noel Corporation, from a Board Order. Noel Francisco of Jones Day argued the cause for petitioner.

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