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Much of the recent uproar over the National Labor Relations Board comes from three recess appointments President Barack Obama made that Republicans have decried as illegal.
Although the three appointees no longer serve on the board, the controversy surrounding their appointments has not died down. In fact, it could lead to a dramatic reinterpretation of presidential appointment powers.
In January 2012, faced with continued Republican opposition to confirming his NLRB nominees, Obama claimed the Senate was in recess and appointed three members — two Democrats and one Republican — to the board. Without those appointments, the NLRB would have lost its quorum and, under law, would have been unable to function.
Republicans cried foul and joined a lawsuit filed by a small bottling plant in Washington state called Noel Canning. The plant sued the NLRB after the board sided with the plant’s employees in a complaint alleging that management had not bargained in good faith. The suit argued that the NLRB’s decision was invalid because three of its members had not been properly appointed because the Senate technically was not in recess.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit found the recess appointment unconstitutional in January, prompting the NLRB to appeal the case to the Supreme Court. The court has indicated it will consider the case this term. A ruling is expected by June.
At stake are the limits of presidential authority. Congress has often complained that the Obama administration is too willing to freeze out lawmakers and claim the authority to make decisions unilaterally.
If the court sides with the plant, it could cast a legal cloud over all the rulings of the NLRB from January 2012 until August 2013, when the board finally had a duly-confirmed quorum. It would also give the Senate much more leverage to paralyze the board by holding up its nominees, likely triggering more Capitol Hill fights over an independent agency that in general stays remains out of the spotlight.