NLRB Appointments Declared Unconstitutional

Full text of the opinion here.

Remember when the President made the appointments to the NLRB by taking the position that a "pro forma" session of the Senate didn't actually count? Yeah, well the DC Court of Appeals considered that issue, and guess what? Our genius-level, three-dimensional chess playing, Constitutional scholar was wrong.

The three appointments made to the NLRB have been declared unconstitutional.

Here's the money part of the opinion:

Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.

Basically, pro-forma sessions mean the Senate is "in Session". Like everyone said. If you don't like an NLRB decision made after the appointment of those members, you can successfully challenge it. You think that anyone out there might object to some of what the NLRB has done recently?

That sound you're hearing from Boeing is not jet engines. That would be Boeing's lawyers revving up their word processors.

Someone much smarter than me (at Volokh) says this is heading to SCOTUS.