Marathon Pundit: NLRB recess appointments battle heads to court

Wednesday, December 05, 2012

NLRB recess appointments battle heads to court

About a year ago President Obama made three recess appointments to the radicalized NLRB.

But was that legal?

From the Wall Street Journal--paid subscription required:

One hallmark of the Obama Presidency is its habit of running roughshod over Congressional prerogatives. A test of that arrogation of power comes Wednesday when the Administration has to defend its imperial treatment of recess appointments in the D.C. Circuit Court of Appeals.

We have long supported such appointments as long as they are made when Congress is genuinely in recess. Yet in January Mr. Obama named three new members of the National Labor Relations Board along with Richard Cordray as the head of the Consumer Financial Protection Bureau when the Senate wasn't in recess. While Congress was conducting pro forma sessions, Mr. Obama pulled this end run around the Senate's advice and consent power.

In Noel Canning v. NLRB, a Washington state Pepsi bottler claims that the NLRB lacked a three-member quorum when it decided a labor case because the recess appointments were illegitimate. In order for the President to make a recess appointment, the Senate must adjourn, and under Article I, Section 5 of the Constitution neither house of Congress can adjourn for more than three days without the other's permission.

On January 4, the day Mr. Obama packed the NLRB, Congress considered itself to be in session. But the White House claimed the pro forma session didn't count because the Senate wasn't really available to do confirmations except by unanimous consent.