On May 16, the Third Circuit Court of Appeals joined a growing number of federal courts that have reversed decisions of the National Labor Relations Board based on quorum issues. These challenges are based on recess appointments by President Obama made to overcome Senate Republican refusal to confirm nominations to the NLRB.  Employers contend that the recess appointments were unconstitutional because the Senate remained in session during the time periods in questions.

In NLRB v. New Vista Nursing and Rehabilitation, the appointment in question occurred during a March 2010 intrasession Senate break. The Third Circuit concluded in a 2-1 decision that the President's recess powers only apply to intersession breaks, meaning the time periods between the first and second sessions of a biennial Congress, and not breaks in the middle of one of those two sessions.

This challenge differs from other cases that deal with intersession breaks where Republicans claim that the Senate technically never adjourned. If these claims are ultimately upheld, dozens of NLRB decisions over the past several years could be affected, including important decisions on social media use restrictions and collective bargaining rules. Ultimately, the U.S. Supreme Court will decide the constitutional limits of the President's recess appointment powers.