Plaintiffs in ongoing litigation filed a motion last Friday challenging President Obama's recent recess appointments to the NLRB. We most recently posted on the appointments here and here.
In the motion last week, the plaintiffs sought to amend their complaint to add a new charge--that President Obama's recent recess appointments to the NLRB were unconstitutional, and therefore the NLRB didn't have sufficient sitting members to enforce its new rules. From the memorandum in support of the motion:
The Board has lost its quorum due to the expiration of Member Becker's term and the President's failure to appoint new Board members with the advice and consent of the U.S. Senate, as required by Article II of the Constitution. . . . The President's purported appointment of the new Board members on January 4, 2012 was unconstitutional, null and void. As a result, there are at present only two validly serving members of the Board, Chairman Pearce and Member Hayes. The Supreme Court has declared that the Board lacks authority to act with only two members. New Process Steel, L.P. v. NLRB.
These faux "recess appointments" are very unlikely to stand.
One issue is that in previous filings, and in oral arguments with the Supreme Court, specifically in a case against the NLRB, the Obama administration told the courts that the reason that vacancies on the NLRB weren't filled by legitimate recess appointments was because Congress had been in session continuously (using pro-forma sessions) and that a recess of at least 3 days within a session would be required for the President to exercise the recess appointment power.
We the People, through our State legislators, need to put an end to this "recess appointment abuse" by Presidents in both parties once and for all. I'm going to talk with my State Legislators about proposing a constitutional amendment to revoke the "recess appointment" power, and in its place, give the President the power to call the Senate back into session to consider an appointment to fill a vacancy that occurs while the Senate is in recess.