When the National Labor Relations Board (NLRB) lost its statutory authority to issue rulings because its normally five-person membership fell to two last week, President Obama made three recess appointments sparking a new controversy between Democrats and Republicans.
One reason the appointments have generated so much attention stems from New Process Steel, L.P. v. NLRB , 130 S. Ct. 2635 (2010), where the United States Supreme Court held that the five-member NLRB cannot delegate its authority to fewer than three members. Thus, a two-person board is not a quorum and is powerless to render decisions. Since Wilma Leibman’s term expired in August 2011, the NLRB had been functioning as a three-member unit. The NLRB lost that three-person quorum when Craig Becker’s term expired at the end of 2011.
Just days before Becker’s term expired and as lawmakers were scheduled to leave on holiday break, President Obama nominated Democrats Sharon Block, a Labor Department Official, and Richard Griffin, General Counsel for the International Union of Operating Engineers who also serves on the board of directors for the AFL-CIO Lawyers, to the NLRB. Griffin is only the second nominee ever to come directly from a labor union. Becker, another controversial Obama recess appointee, was the first. Earlier in 2011, President Obama nominated Republican Terrance Flynn, an NLRB attorney, for appointment to the NLRB, but the Senate while in session did not act on the nomination.
In an attempt to stop the President from making good on his threat to make recess appointments, the Republican Senate began holding pro forma sessions over the holiday to technically avoid recessing – a strategy employed in 2007 by the then-Democratic Senate to block President George W. Bush from making recess appointments.
With the Senate and the President at a standoff, President Obama called the Senate’s bluff and seated all three NLRB nominees.
Labor and Democrats are praising President Obama’s NLRB appointments. Republicans, on the other hand, argue that the President’s appointments are unconstitutional and an attempt to circumvent the Senate’s roll to "advise and consent."
Given the outcry from Senate Republicans and the stakes, there is little doubt that the constitutionality of the President’s appointments will be challenged.
The key issue will likely be: "How long must the Senate be away to technically be on "recess?" Although the Constitution gives the president the "[p]ower to fill up all vacancies that may happen during the recess of the Senate," which do not have to be confirmed by the Senate and allows the appointees to serve until the end of 2012, it fails to identify how long the Senate must be on "recess" before the president can exercise his recess appointment power. This topic has been debated by legal experts for years and Senate Minority Leader, Mitch McConnell (R-Ky) argues that "long-standing precedent … limited the President to recess appointments only when the Senate is in a recess of 10 days or longer," which did not occur in this instance.
To make a challenge most directly, Republicans can ask a federal court to rule that the Senate was in session and seek to invalidate the appointments. If this happens, New Process Steel, L.P., which invalidated nearly 600 opinions issued by the two-member NLRB made between 2007 and 2009, provides guidance and would likely make invalid any NLRB decisions issued by the NLRB while the disputed appointees are in place. Just as happened after the New Process Steel case, that will force federal courts and a properly-seated NLRB to decide the cases again.
In a similar move with particular interest to those familiar with Ohio politics, President Obama also appointed former Ohio Attorney General Richard Cordray as director to the new Consumer Financial Protection Bureau (CFPB) (an agency vehemently opposed by Republicans). President Obama first nominated Cordray in July 2011, but the Senate Republicans used the threat of a filibuster to prevent a confirmation vote and vowed not to support any nominee, regardless of party affiliation, to be the CFPB director unless Democrats agreed to new legislation. The Senate refusal to budge on the issue rendered the CFPB powerless because it cannot issue rules without a director. Like the NLRB recess appointments, it is likely the Cordray appointment will face constitutional challenge.