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Supreme Court to consider NLRB authority to act

July 2, 2013

On June 24, the U.S. Supreme Court granted the petition for a writ of certiorari in NLRB v. Noel Canning.  In addition to the questions presented by the petition, the parties were directed to brief and argue whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

On Jan. 25, 2013, the U.S Court of Appeals for the District of Columbia Circuit ruled that the National Labor Relations Board (NLRB) lacks authority to act because it has only one lawful member.  The NLRB is composed of five members and must have at least a quorum of three to make decisions or take action. The Court held that the President’s recess appointments to the NLRB made Jan. 4, 2012, were not constitutionally valid since the Senate was not in recess.  The decision also puts in doubt every decision made by the NLRB since Jan. 2012, an estimated 300 decisions because the NLRB did not have the legal authority to act. Moreover, the NLRB says that over 100 decisions are currently pending.

Richard Cordray, Director of the Consumer Financial Protection Bureau (CFPB) was appointed Jan. 4, 2012 by recess appointment at the same time as the three NLRB appointments were made.  If the Senate was not in recess on that date, then his recess appointment will be found to be constitutionally invalid as well.

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