Or about 673 published decisions and 896 unpublished ones. That is the conclusion reached by a National Right To Work Legal Foundation study of cases where the National Labor Relations Board reached a ruling without having a valid legal quorum.
An cppeals court ruled in the January case Noel Canning v. NLRB that President Obama’s use of recess appointments to fill the board was unconstitutional. With those appointments retroactively invalidated, that meant the board has lacked a valid quorum since at least January 2012, when Obama made three recess appointments, including two of the board’s current members.
The National Right To Work Legal Foundation took it further, examining every case before the NLRB since Obama took office where it lacked a quorum under the standard established by the Noel Canning case. The foundation’s posting states: “A court majority also held that recess appointments can only be made for vacancies occurring during a congressional intersession recess. All recess appointments to the NLRB during the Obama Administration have been intrasession rather than intersession appointments. Consequently, all such appointments are void.”
Intersession recesses are the breaks that happen between, for example, the end of 112th congressional session and the start of the 113th session. Intrasession recesses are the brief breaks that happen while a congressional session is ongoing.
The NLRB has asked the Supreme Court to rule on the matter. A ruling, should the justices take up the case, will likely happen no earlier than October.