The Associated Press reports:
A third federal appeals court has declared President Barack Obama's recess appointments of three members of the National Labor Relations Board unconstitutional.
A divided three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals issued its ruling Wednesday, refusing to enforce two NLRB decisions. Federal appeals courts in the District of Columbia and Philadelphia have issued similar rulings, and the U.S. Supreme Court has agreed to hear the D.C. case.
In all three cases, the courts ruled the Senate wasn't really in recess when Obama filled the vacancies during a holiday break in January 2012.
However, those cases could be made essentially moot by an agreement reached Tuesday. Obama replaced two NLRB appointees opposed by Senate Republicans, clearing the way for a confirmation vote next week.
A divided three-judge panel of the Fourth Circuit held today that three of President Obama’s appointments to the NLRB were invalid because they did not take place during an intersession recess of the Senate. Senior Judge Hamilton wrote the opinion for the majority in NLRB v. Enterprise Leasing Co. SE, LLC (the lead case on the caption). Judge Duncan joined in full and wrote a separate concurrence. Judge Diaz dissented from the constitutional holding (but concurred in other matters).
Although Judge Hamilton and Judge Duncan were appointed by Presidents Bush 41 and Bush 43, respectively, while Judge Diaz was appointed by President Obama, the best explanation for the differing outcomes tracks methodological rather than partisan political differences. The majority and dissenting opinions exhibit vastly different approaches to constitutional interpretation. The majority emphasizes text and history while the dissent is avowedly pragmatic and functional (indeed the most explicitly functionalist opinion by Judge Diaz that I can recall).
The Fourth Circuit’s decision bodes poorly for the Administration when the Supreme Court addresses these issues next Term in NLRB v. Noel Canning. This assessment is based not simply on the bottom-line conclusion reached by the Fourth Circuit, but on how the opinions were reasoned. On issues like these, the majority of the Supreme Court is methodologically closer to Judge Hamilton than Judge Diaz. It is difficult to see a majority of the Court hewing to the reasoning and conclusions reached by Judge Diaz in this case.