NLRB Recess Appointment Decision Receives First Legal Challenge

The President’s move to seat three new members to the National Labor Relations Board via recess appointment has its first official court challenge. On January 13, 2012, the National Right to Work Foundation (NRTW) along with other business advocacy groups filed a motion (pdf) in the U.S. District Court for the District of Columbia to contest the constitutionality of the President’s actions. The crux of the argument is that since the Senate was not technically in recess at the time of the appointments, the President lacked the authority to seat new Board members without the Senate’s advice and consent. When Obama made these appointments, the Senate was holding regular pro forma sessions in which the chamber convenes but conducts no substantive business.

This challenge to the three new recess appointments was added to an existing consolidated lawsuit opposing the NLRB’s notice posting rule filed by, among other entities, the NRTW, Coalition for a Democratic Workplace (CDW), and the National Federation of Independent Business (NFIB). This new rule mandates that as of April 30, 2012, private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees and penalizes employers for non-compliance. According to the NRTW’s motion and memorandum in support, (pdf) because the recess appointments are not Constitutionally legitimate, the NLRB lacks the quorum needed to implement and enforce the notice posting rule.

Friday’s legal challenge comes days after the U.S. Department of Justice (DOJ) released a memorandum opinion (pdf) that sanctioned the legality of the President’s ability to make recess appointments while the Senate holds pro forma sessions. According to the DOJ:

In our judgment, the text of the Constitution and precedent and practice thereunder support the conclusion that the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a “Recess of the Senate” under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.

In its motion, the NRTW vehemently disagrees with the Attorney General’s position, finding it “contrary to the Constitutional power vested in the Senate to ‘determine the Rules of its Proceedings.’” In addition, the NRTW claims that “by declaring the Senate sessions to be ineffective to prevent a recess,” the DOJ’s position “causes the Senate to be in violation of the Constitutional requirement that neither House shall adjourn without the consent of the other for more than three days,” as well as runs contrary to long-standing practice.

In a statement, NRTW President Mark Mix said: "Now Obama's executive abuse jeopardizes the constitutional balance our country holds very dear, all in the name of paying back his Big Labor benefactors."

During a January 12 White House press briefing, Press Secretary Jay Carney asserted that the DOJ’s position was conveyed to the President before he made the recess appointments, and that the Administration “believe[s] our legal argument is very strong, will absolutely pass muster.”

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