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Miguel Estrada's Revenge

Appeals court rules Obama NLRB appointments invalid.

2:07 PM, Jan 25, 2013 • By MICHAEL WARREN
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The D.C. Circuit Court of Appeals ruled Friday that President Obama's January 2012 recess appointments to the National Labor Relations Board were unconstitutional and invalid. Bloomberg reports:

The U.S. Court of Appeals in Washington in a unanimous ruling today sided with Republican lawmakers and a canning company that challenged the appointments. The judges said the definition of “the Recess” in the Constitution’s Recess Appointments Clause is limited to the period between one Congress and the next, and that Congress had begun a new session at the time the president made the appointments.

“Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” U.S. Circuit Judge David Sentelle wrote.

The ruling today is the first substantive decision by a federal appeals court on several challenges to the president’s naming of the NLRB members on Jan. 4, 2012, while the Senate was holding so-called pro-forma sessions that sometimes involved a single senator appearing in the chamber every third day.

Senate Republicans were represented in their amicus brief by Miguel Estrada, the former assistant to the solicitor general whom George W. Bush nominated to serve on the D.C. Circuit in 2001. Estrada's nomination was filibustered by Senate Democrats and he withdrew his name for consideration in 2003.

Update: Here's the text of the decision.

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