Divided Third Circuit Panel Invalidates NLRB Recess Appointment

The Third Circuit (Smith, Van Antwerpen, Greenaway (dissenting)) has invalidated an NLRB decision after concluding that one of the Board’s members had an invalid recess appointment.  The decision is available here.  Before you think about printing it out, be advised that the majority opinion is 102 pages long, and Judge Greenaway’s dissent runs another 55.  I’ll have more when I’ve had a chance to review the decision.

Readers of my posts on recess appointments should understand that Judge Smith’s position on recess appointments is contrary to what I’ve espoused in the past–although I’m in the process of reviewing recent originalist scholarship about the meaning of “session” and “recess” and we’ll see whether that changes my mind.  But because I had an argument before a panel of the Third Circuit yesterday that included Judge Smith, I’ve studied up on him, and I’m aware that his recent track record before the Supreme Court is pretty good.  See United States v. Stevens, 533 F.3d 218 (3d Cir. 2008) (en banc) (ban on depictions of animal cruelty), aff’d, 130 S. Ct. 1577 (2010); Bruesewitz v. Wyeth, Inc., 561 F.3d 233 (3d Cir. 2009) (preemptive effect of National Childhood Vaccine Injury Act), aff’d, 131 S. Ct. 1068 (2011); Greene v. Palakovich, 606 F.3d 85 (3d Cir. 2010) (meaning of “clearly established federal law” for habeas corpus claims under 28 U.S.C. § 2254(d)(1), aff’d, 132 S. Ct. 38 (2011).

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