Tuesday, January 17, 2012

Next stop for Obama's appointments: SCOTUS?

Article first published as Lawsuit Over Recess Appointments on Technorati.

The National Federation of Independent Businesses has tacked on a challenge to Obama's recent appointments of three NLRB board members to an already extent lawsuit over the "poster rule." From the NFIB website:
Amending its existing challenge to the National Labor Relations Board’s (NLRB) “Notice Posting Rule,” the National Federation of Independent Business (NFIB) today added new claims, alleging that the Board appointments issued on January 4, 2012, violate the Constitution. The amended complaint argues that the Board does not possess the authority to enforce the poster rule, as the agency is operating without a legal quorum since the three appointments last week are not permissible under the law.
The original lawsuit is over whether or not businesses should be required to post notices, informing employees of their right to unionize. That rule was proposed by the NLRB last year and meant to into effect last November. The NLRB has agreed to delay implementation of the rule due to the original lawsuit, file jointly by the NFIB, the NAM (National Association of Manufcturers, and several other groups.

This new addendum by the NFIB legally raises the issue--already hotly debated--of whether or not a pro forma session of the Senate counts as a legitimate session, thereby preventing any recess appointments by the President.

The argument that the appointments were unconstitutional is simple: the Senate was technically in session, thus recess appointments cannot occur legally, by definition. The counter from the administration and its supporters is that a pro forma session is a procedural trick and doesn't prevent the President from exercising his constitutional authority to make recess appointments.

Further, those supporting the President's action argue that the Senate's power to "advise and consent" is, itself, technically impossible when in pro forma session, since business cannot be conducted. Additionally, they argue that blocking nominations for political reasons violates the spirit of the power, that using tricks to delay votes on nominations indefinitely is not a legitimate use of the power.

But the appointments in question here--the three NLRB ones, not the Cordray appointment--don't fit that template. As Laura Meckler and Melanie Trottman as the WSJ note, two of these three appointments were just made, neither having had a single confirmation hearing. So the argument that the appointments were being held up by the Senate is invalid, on its face. As to the last, Traditionally, the party in power (with regard to the Presidency) has three members on the board, the other party has two:
The third, a Republican, was nominated a year ago, but there is little evidence that Democrats pushed for a vote on his nomination, perhaps because installing him without also confirming another Democrat could have given Republicans a majority on the board.
As to the idea that business cannot be conducted in a pro forma session, the Senate passed the payroll tax break extension during such a session. Thus it would seem the White House can only rely on the first argument, that the pro forma session "doesn't count."

And this is a question that can only be decided by the Supreme Court.

Cheers, all.

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