Court ruling threatens not just 200 labor board cases, but recess appointment power

Headed to the Supreme Court? The appeals court ruling (by three Republican-appointed judges) that President Barack Obama's recess appointments to the National Labor Relations Board were unconstitutional would have huge ramifications if upheld. Two of the big ones: Every decision made by the NLRB in the year since the recess appointments would be invalidated, because it was only the recess appointments that gave the NLRB the quorum it needed to continue functioning at all, and oh yeah, there would be almost no circumstances under which presidents could make recess appointments going forward.

For now, the NLRB is going to continue functioning under the assumption that the ruling will be overturned. If it's upheld by the Supreme Court, though:

Such a ruling would mean all the board's decisions since January 2012 are invalid'every court would have to recognize that the rulings were made by a board that lacked proper constitutional authority.

It would also prevent the board from making further rulings until Obama appoints at least two new sitting members and lawmakers confirm them. At least three members are necessary to make a quorum, and all but one right now were appointed while the Senate was on break.

That's more than 200 NLRB decisions hinging on the Supreme Court. Led by John Roberts. But it's not just Obama's appointments that would be challenged by this ruling, which says that recess appointments can only be made if a position comes open while the Senate is in recess, not for positions that are open at the time the Senate goes into recess.

If the Washington court ruling is upheld by the U.S. Supreme Court, then it may mean the Senate has always had the power to block recess appointments, according to Edward Hartnett, a constitutional law professor at Seton Hall University.

'To conclude the D.C. circuit is right you'd have to conclude that presidents dating back to at least James Madison have been wrong,' Hartnett said in a telephone interview. 'For a practice that presidents have engaged in since close to founding of our nation, it's hard to conclude that all acted unconstitutionally.'

Obama, by the way, has made just 32 recess appointments, while George W. Bush made 171 and Bill Clinton made 139.