The 3rd U.S. Circuit Court of Appeals has become the second circuit to question the validity of the National Labor Relations Board’s decisions, ruling that a board appointment made by President Barack Obama during a Senate recess was invalid.

The court held that so-called recess appointments can be made only when the Senate is between sessions, as opposed to the “intrasession” break in March 2010, when the appointment at issue was made. The U.S. Court of Appeals for the District of Columbia Circuit ruled that three similar appointments made by the President in 2012 were similarly invalid. The 3rd Circuit ruling heavily referenced the D.C. Circuit decision as well as original source material from the days of the founding fathers.

“They went a long way to look for relevant historic information, for the founders’ original intent,” said Denise Keyser, a Ballard Spahr labor and employment attorney. “This seems to be written with our current Supreme Court in mind—at least the conservatives on the court.”

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Labor and Employment