U.S. Court of Appeals Decision on NLRB Appointment

The U.S. Court of Appeals for the Third Circuit issued an opinion holding that a purported “recess” appointment to the National Labor Relations Board (NLRB) was invalid and unconstitutional. This decision echoes the earlier decision of the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB, and holds that the term “recess appointment” refers to an appointment which is made between sessions of Congress, and does not apply to appointments which are made during sessions of Congress. That is, the President may only make appointments without Senate approval during inter-session recesses, and not during an intra-session break in proceedings.

NLRB v. New Vista PDF