First, the NLRB would have just one valid appointee left, which would prevent it from deciding any further labor cases. (At least three sitting members are needed for a quorum, though the board could still hold union elections and investigate unfair practices.)
Second, and just as significantly, hundreds of NLRB decisions that have been handed down since January 4, 2012 would suddenly become invalid. That includes rulings on everything from how workers can use social media to regulations on union dues-checkoffs. ...Brad Plumer, WaPo
Try -- just try! -- to convince me that this was a non-partisan decision.
Sentelle, joined by Judges Karen LeCraft Henderson and Thomas B. Griffith, said that the Constitution’s reference to “the Recess” means that appointments are allowed only during the recess between sessions of the Senate, not when the Senate is simply on a break. It was not up to the president to decide what constitutes a recess, Sentelle said.
The ruling noted that another federal appeals court has read the Constitution differently, which adds to the likelihood the Supreme Court will have to settle the issue.
Sentelle and Henderson went where apparently no other court has gone. They said that the president has the authority to make appointments only to vacancies that arise during a recess, which would drastically limit a president’s ability to make use of the recess appointment power. ...WaPo
Which is more than a little odd, given recent history.
Presidents from both parties have made hundreds of recess appointments when the Senate has failed to act on nominations. Ronald Reagan holds the record with 243. Obama’s predecessor, George W. Bush, made 105, and it was during his term that Senate Democrats began holding pro-forma sessions, some lasting less than a minute, when the Senate went on break. They contended that that kept the Senate in session and did not allow Bush to make recess appointments.
Republicans took up the practice when Obama was elected. But Obama decided to challenge it in January 2012, when the Senate was on a 20-day holiday but holding pro-forma sessions every three business days to block presidential action. ...WaPo
The three judges -- Sentelle, Henderson, and Griffith -- are Republican appointees. By Reagan, George 1 and George 2 respectively.