On Friday, January 13, 2012, a number of business groups, including the National Federation of Independent Business, National Right to Work Foundation, Coalition for a Democratic Workplace, lodged the first legal challenge seeking to block President Barack Obama’s January 4, 2012 recess appointments to the National Labor Relations Board (“NLRB”).
Procedurally, the groups bootstrapped their challenge to a lawsuit pending in the U.S. District Court for the District of Columbia challenging the NLRB’s highly controversial “Notice Posting Rule” that would require businesses to post notices and inform employees right to bargain collectively, distribute union literature, and engage in other union activities without reprisal under the National Labor Relations Act (“NLRA”), which is set become effective April 30, 2012.
As we more fully discussed here on January 6th, the NRLB lost its quorum when former Member Craig Becker’s term expired on January 3, 2012. President Obama then appointed Terence Flynn, Sharon Block, and Richard Griffith to the NLRB. The business groups argue in their motion and accompanying legal memorandum that these appointments are “unconstitutional, null and void,” because they were done while the Senate was in session, leaving no “recess” during which time President Obama could make appointments “without seeking or obtaining the advice and consent of the Senate.” As a result, the NLRB, with only two members, lacks the necessary quorum and ultimately “authority to implement or enforce” the Notice Posting Rule pursuant to New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010).
The challenge came just one day after the Office of the Attorney General made public its Memorandum Opinion (dated January 6, 2012) defending the appointments. In it, the Justice Department argued President Obama had authority to make the appointments because the Senate’s pro forma sessions did not have the legal effect of interrupting an intra-session recess otherwise long enough to qualify as a recess of the Senate under the Recess Appointments Clause. Thus, the President could use his discretion to conclude “that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”
U.S. District Judge Amy Berman Jackson, an Obama nominee who has been on the bench since March 18, 2011, will hear the challenges to the Notice Posting Rule and to President Obama’s recess appointments. Regardless of her decision, the case will likely make its way up to the Supreme Court due to the unique nature of the issues raised.
Not to be outdone, the legislature also has filed its first shot against the recess appointments. Representative Jeff Landry, R-La, unveiled H.R. 3770 – the Executive Appointment Reform Act (“EARA”) to, as he deems it, “Stop the Exploitation of Recess Appointments” by barring the NLRB from having a quorum until its members are confirmed by the Senate. The legislation would also cut off payments to any individuals appointed during a Senate recess and put limits on an appointee’s ability to perform voluntary or gratuitous service.
More than 70 House Republicans also have signed onto a resolution that would state Congressional dissatisfaction with President Obama’s actions.