Recess appointments, shmecess appointments, we’ve got the power

by Walter Olson on February 1, 2013

Although the D.C. Circuit Court of Appeals has ruled its composition invalid, the National Labor Relations Board (NLRB) “declares that it will keep doing business as if nothing happened.” [WSJ via Fed Soc Blog]

This is by no means the first face-off between the D.C. Circuit and an agency resistant to its will: for another, see this 1981 Regulation account (PDF, scroll to page 11, “Reversing the D.C. Circuit at the FCC”) of a series of showdowns between the appeals court and the Federal Communications Commission. That one ended happily for the independent agency, but then the FCC may have been on firmer ground going to bat for its right to exercise policy discretion as an expert agency than it would have for its right to be constituted improperly through unconstitutional appointments.