The D.C. Circuit now has an ally in its recent industry-shaking declaration that President Obama’s recess appointments to the National Labor Relations Board (NLRB) in January 2012 are invalid. On Thursday, the 3rd Circuit said the same thing about an appointment made two years earlier.
The case, NLRB v. New Vista, concerned Obama’s March 2010 appointment of Craig Becker during a two-week Senate break. This type of break is known as an “intrasession” break, whereas intersession breaks are when the Senate is between sessions. The president has the power to appoint senior federal officials while the Senate is in recess, but in this 2-1 opinion, the 3rd Circuit found that “the ‘recess of the Senate’ means only intersession breaks.”