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Court: President Obama labor relations panel appointments are unconstitutional

By Sam Hananel

Associated Press

Published: Friday, Jan. 25 2013 1:08 p.m. MST

Sentelle was joined in the ruling by Judge Thomas Griffith, appointed to the court by President George W. Bush, and Karen LeCraft Henderson, who was appointed by President George H.W. Bush.

"I think this is a very important decision about the separation of powers," said Carl Tobias, a constitutional law professor at the Virginia's University of Richmond. "The court's reading has limited the president's ability to counter the obstruction of appointments by a minority in the Senate that has been pretty egregious in the Obama administration."

If the ruling stands, it means that hundreds of decisions issued by the board over more than a year would be invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

Obama used the recess appointment to install Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.

Sen. Tom Harkin, D-Iowa, urged the NLRB to continue conducting business until the Supreme Court rules on the issue.

"Today's circuit court decision is not only a radical departure from precedent, it ignores the fact that President Obama had no choice but to act," Harkin said. "Throughout his presidency, Republicans have employed unprecedented partisan delay tactics and filibusters to prevent confirmation of nominees to lead the NLRB, thus crippling the Board's legal authority to act."

If Obama's recess appointment of Cordray to the newly created consumer board is also ruled invalid, all the regulations the consumer board has issued, many of which remake the mortgage business, could be nullified.

Follow Sam Hananel on Twitter: http://twitter.com/SamHananelAP

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