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First challenge on new Obama appointees

A group of business organizations and individual firms on Friday began the first challenge to President Obama’s new government appointments while the Senate is out of town, using a case involving the National Labor Relations Board to test the issue.  In a motion filed in U.S. District Court in Washington, along with a legal memorandum, the challengers argued that the NLRB has no power to go ahead with a pending rule on workers’ rights because the three new appointees were not legally named, so the Board has no operating quorum.

Because the challenge puts a cloud of uncertainty over the NLRB’s authority to take any action, it appears likely that the courts will move quite rapidly to resolve the controversy.  Previously, when there were doubts about the Board’s membership, hundreds of actions it had taken had been put into a legal limbo, producing a significant Supreme Court ruling on that in 2010.

U.S. District Judge Amy Berman Jackson in Washington is hearing business challenges to a rule, not yet put into effect by the NLRB, that would require as many as six million employers to put up in their workplaces a permanent poster that notifies their employees of the legal rights they have under federal labor law.  That requirement, the so-called “notice posting” rule, is now due to go into effect on April 30.  It had been set to go into effect at the end of this month, but the Board postponed it in December at Judge Jackson’s specific request while she ponders the challenge (pending in National Association of Manufacturers, et al., v. NLRB, District Court docket 11-1629).

Although that rule was put into final form by the Board before the President early this month gave “recess appointments” to three new members, the motion filed Friday argued that those appointments are “unconstitutional, null and void,” reducing the Board to only two members, and thus the Board “no longer has authority to implement or enforce the Notice Rule on its purported effective date of April 30, 2012.”  (Under the Supreme Court decision in 2010, in New Process Steel, L.P. v. NLRB, the Board cannot take action with only two of its allotted five members.)

The potentially momentous fight over the Obama nominations thus will go first to a federal judge who has been on the bench for less than a year.  Named by President Obama initially in 2010 and renominated last year, she won unanimous Senate approval and formally joined the D.C. District Court last March 18.

The nominations that the President made to the NLRB, and to a new consumer protection agency, have been sharply criticized by Republicans in Congress and by some advocacy organizations, contending that the Senate is not in recess and so the President has no authority to place people in government positions that require confirmation by the Senate.  The President’s lawyers, however, have argued that the Senate is not really in session because it is meeting every three days only for “pro forma” sessions that involve no legislative business, so the White House considers the senators to have been in recess for weeks.   The Senate, his counsel have advised the President, cannot thwart the President’s constitutional power to make recess appointments simply by staging mock sessions.

Critics of these appointments rely upon the Constitution’s provision that neither house of Congress can recess for more than three days without the consent of the other.   The Senate thus is in control of when it recesses, the critics say, and it has opted to come in often enough to stay in nominal session.  It is not up to the President, they add, to decide when the Senate is or is not in recess, even when it is out of town for a prolonged period, as it now is.

The dispute in which this issue has now moved into the courts had its beginning last August, when the NLRB — then with three members serving, and thus it was within the limits the Supreme Court said were binding for a quorum — adopted a final rule that employers within its jurisdiction must post a notice on their workplace walls — in a sizable poster — a reminder to workers of their rights under federal labor law.   At that time, Mark Pearce was the NLRB chairman, and Craig Becker and Brian Hayes were Board members.

Responding, the National Association of Manufacturers and others business and advocacy organizations joined in a lawsuit — assigned to Judge Jackson — claiming that the Board had no authority to issue the notice-posting rule because it was not based upon any finding that an employer had in any way violated labor law.  Moreover, the notice as actually composed, the lawsuit argued, was “framed in such a way as to lack neutrality and unfairly encourage and promote unionization.”

The complaint contended: “The imposition of such a notice requirement, 75 years after passage of the [National Labor Relations] Act, constitutes a massive, unprecedented and unlawful expansion of the Board’s jurisdiction.”   They asked Judge Jackson to find the rule to be illegal, and to permanently block its implementation.

The case was moving forward when, on January 3, Board member Becker’s term expired, and he left the agency.  At that point, its membership dropped to two, and made the Board essentially inoperative.

The next day, President Obama, relying on his perception of his recess appointments powers and arguing that he had a constitutional duty to keep government agencies running, named three new NLRB members: Sharon Block, Terence F. Flynn, and Richard F. Griffin, Jr.  Because these were immediate appointments, those new members could go to work at once without Senate approval, or even consideration.   On January 10, the Board’s lawyers notified Judge Jackson of these appointments, and asked that they be substituted as the Board members being sued.

Around Washington, and elsewhere, groups opposed to the President’s appointments began looking for ways to mount a legal challenge.  That came on Friday, before Judge Jackson in the notice poster case.   Not only did the motion challenge the Board’s authority to proceed with the rule, even if it were to get Judge Jackson’s approval, but also the challengers contended that the Obama appointees could not be substituted in the lawsuit to fill up the Board.   In addition, they questioned whether the Board’s lawyers even had authority to file a document seeking their substitution, since the Board, they argued, does not have a quorum and thus its lawyers could not take action on its behalf.

“Very significant events have happened within the last days,” the new legal memorandum said, “that create a new and substantial ground for enjoining the…challenged rule….The additional facts and grounds for relief…are of great importance to this case.”  Thus, it contended, allowing the challengers to amend their challenge “is the only way to dispose of the entire controversy between the parties….The issue is also of great public interest as there is currently great doubt throughout the country as to the legiitmacy of the current Board, and it is important to resolve this uncertainty as soon as possible.”

The legal memorandum directly challenges the Justice Department opinion upon which President Obama was said to have relied in concluding that he could make the recess appointments he did on January 4.

Recommended Citation: Lyle Denniston, First challenge on new Obama appointees, SCOTUSblog (Jan. 13, 2012, 4:58 PM),