By Joshua M. Henderson

This afternoon, NLRB Chairman Mark Gaston Pearce issued a statement in response to the D.C. Circuit’s decision invalidating the recess appointments of three members of the Board:

“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

This statement is, in some respects, an unremarkable “business as usual” declaration. Yet it also makes clear that the Board intends to contest similar constitutional challenges in other cases. Thus, until the Supreme Court intervenes, it can be expected that the Board will continue to issue decisions and orders, notwithstanding the possibility that they ultimately may be declared void and unenforceable.