Gary Lofland obtains a nationally-significant ruling from the D.C. Circuit Court
February 06, 2013
D.C. Circuit holds that President Obama’s “recess appointments” to the National Labor Relations Board are constitutionally invalid.
Gary Lofland of Halverson | Northwest Law Group, obtained a nationally-significant ruling from the D.C. Circuit in the case of Noel Canning v. National Labor Relations Board, 2012 WL 402322. Lofland represented The Noel Corporation in challenging Presidential appointments to the National Labor Relations Board (NLRB). In a case that presented significant constitutional issues, the Court sustained a challenge to President Obama’s three “recess appointments” to the National Labor Relations Board and found that such appointments were invalid under the Recess Appointments Clause of the United States Constitution. The case and decision have drawn national media attention. Case reporting included the following: Washington Post, New York Times, and Forbes.
The Court held that recess appointments can be made only during the recess between each session of Congress – which happens at most, only once each year – rather than breaks that occur during each session of Congress. The Court also held that “recess” appointments can be made only to fill those positions that become vacant during the recess and that the President cannot make recess appointments to fill preexisting or longstanding vacancies.
The United States Chamber of Commerce and the Coalition for a Democratic Workplace sought intervention to support the Noel Corporation. Senator Mitch McConnell and the Senate Republican Caucus and House Minority Leader John Boehner filed Briefs in support of the Noel Corporation.
The Court’s decision deprives the NLRB of a quorum and serves to invalidate decisions issued since January 4, 2012. The ruling could have the effect of invalidating hundreds of NLRB decisions made during the last year. It also calls into question other recess appointments such as that of Richard Cordray, the new head of the Consumer Financial Protection Bureau, who was appointed in a similar manner.
John Elwood, who served in the White House Office of Legal Counsel from 2005-2009, said in an interview with Reuters, “This is a big, big decision on executive power…it is one of the most important decisions in decades. Mr. Lofland believes the Government is certain to appeal the decision which will eventually be heard by the Supreme Court.
Mr. Lofland is chair of the employment and labor department for Halverson | Northwest Law Group. He can be contacted at glofland@halversonNW.com.
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