JURIST Guest Columnist Glenn Taubman, Staff Attorney for the National Right to Work Legal Defense Foundation, argues that President Obama’s “recess” appointments of three new members to the National Labor Relations Board are invalid because the Senate was not actually in recess at the time of the appointments…

On January 3, 2012, the term of National Labor Relations Board (NLRB) member Craig Becker expired, leaving the NLRB with only two members out of five seats. The NLRB ceased to function that day, since the Supreme Court ruled in New Process Steel v. NLRB that the NLRB lacks authority to conduct business in the absence of a quorum of at least three members.

On January 4, 2012, President Obama announced that he was appointing three new members to the NLRB through “recess appointment”: Members Block, Griffin and Flynn. However, the Senate was in session at the time of the president’s appointments of the new board members. By unanimous consent, the Senate voted [PDF] to remain in session for the period of December 20, 2011 through January 23, 2012. Moreover, the House of Representatives never gave its consent to a Senate recess of more than three days, as would have been required by Article I, Section 5, Clause 4 of the Constitution.

The president purported to appoint the new members without the advice and consent of the Senate that is required by Article II, Section 2, Clause 2 of the Constitution. Thus, it is quite clear that the president improperly attempted to name the new NLRB members as “recess” appointments pursuant to Article II, Section 2, Clause 3, even though the Senate was not in recess at the time.

Numerous courts have held that an agency whose members have been improperly appointed in violation of the Appointments Clause of the Constitution or related provisions lacks authority to act, and that private parties who are adversely affected by such ultra vires agency action are entitled to injunctive relief, as seen in FEC v. NRA Political Victory Fund.

In a Supplemental Brief filed on January 10, 2012, in an ongoing federal court case [PDF] challenging the NLRB’s “Notice Posting Rule,” the NLRB asserted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure that the purported new members are successors to the previously vacant offices and should be substituted as defendants in their official capacities. The co-plaintiffs in that case contested that filing [PDF], thereby seeking to challenge the lawfulness of the “recess appointments” and the ability of the NLRB to enforce and implement the Notice Posting Rule without a lawful quorum. The co-plaintiffs are the National Right to Work Legal Defense Foundation, the National Federation of Independent Business, the Coalition for a Democratic Workplace and two small individual employers, Southeast Sealing and Delaware Valley Racquet Clubs. The Foundation has a particularly acute reason for challenging the validity of the purported appointments, because Foundation staff attorneys represent workers in six cases currently pending before the Board.

In the challenge to the Notice Posting Rule, the co-plaintiffs argue that all but two of the current putative members of the NLRB have been appointed in violation of the Appointments Clause of the Constitution. This is so because the president attempted to appoint Members Block, Griffin and Flynn while the Senate was in session, but without seeking or obtaining the Advice and Consent of the Senate, in violation of Article II, Section 2, Clause 2 of the Constitution. The president’s claim that these appointments were somehow valid “recess” appointments is inconsistent with Article II, Section 2, Clause 3 of the Constitution, which requires that the Senate actually be in recess at the time when such appointments are made, as seen in Evans v. Stephens.

The longstanding view of the Attorneys General who have issued opinions on this issue, prior to the current appointments, has been that the term “recess” as applied to intra-session appointments includes only those intra-session breaks that are of “substantial length.” The Obama administration’s Solicitor General stated on the record to the Supreme Court during the oral argument in New Process Steel that a recess must be longer than three days in order for a recess appointment to occur. The seminal opinion of Attorney General Harry Daugherty in 1921 established the consistently followed rule that the recess should be of such duration that the Senate could “not receive communications from the President or participate as a body in making appointments.” No such break has occurred in the present circumstances. Indeed, the Senate was in session during the period when the appointments were made and was certainly able to receive communications and participate in the appointment process. This is conclusively proven by the fact that only days before the Obama recess appointments were made, during its ongoing pro forma sessions, the Senate passed the payroll tax bill and communicated with the president and the House with regard to that important legislation. The president signed that legislation, never protesting that it was invalidly enacted due to a congressional recess.

On January 6, 2012, a political appointee of the Attorney General’s office issued a Memorandum Opinion [PDF] purporting to justify the president’s recess appointments. The opinion was not made public until January 12, 2012. In it, the Attorney General’s Office has declared for the first time that the Senate’s convening of periodic pro forma sessions does not have the legal effect of interrupting an intra-session recess otherwise long enough to qualify as a recess of the Senate under the Recess Appointments Clause. This opinion is contrary to the constitutional power vested in the Senate to “determine the Rules of its Proceedings” (Article I, Section 5, Clause 2). The opinion, by declaring the Senate’s ongoing pro forma sessions to be ineffective to prevent a recess, also 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 (Article I, Section 5, Clause 4). The opinion is also contradicted by the actual experience of pro forma sessions of the Senate, as noted above, which demonstrate that the Senate was in fact available to fulfill its constitutional duties to consider any appointments that the president wished to put forward for advice and consent. Thus, the unprecedented opinion of the Attorney General fails to justify the president’s attempted recess appointments and should not be adopted by any court.

Indeed, if the president has the power to determine for himself when the Senate is in recess, he can do so during any weekend, lunch break, or even when he believes that the Senators’ debate has stalled and they are not working efficiently and effectively as a body. Among others, this position is a clear violation of Article I, Section 5, Clause 2, which makes each house the master of its own rules. Since neither the House nor the Senate declared themselves in recess, the purported recess appointments to the NLRB must fail.

Glenn Taubman has served as a Staff Attorney for the National Right to Work Legal Defense Foundation since 1982. He is lead counsel for the Foundation in the “Notice Posting” case discussed in this article. Taubman holds a J.D. from Emory University School of Law, and an LL.M. in Labor Law from the Georgetown University Law Center. He clerked for the Judge Warren Jones of the US Court of Appeals for the Eleventh Circuit.

Suggested citation: Glenn Taubman, Obama’s NLRB ‘Recess Appointments’ are Unconstitutional, JURIST – Hotline, Jan. 28, 2012, http://jurist.org/hotline/2012/01/glenn-taubman-appointments.php.