On January 4, President Obama issued recess appointments of Sharon Block (D), Richard Griffin (D) and Terry Flynn (R) to fill out the five-member National Labor Relations Board (NLRB).
While intended to ensure that the Board can continue its work, these appointments are fraught with controversy and likely to be the subject of a constitutional legal challenge.
When the second session of the 112th Congress gaveled in on January 3, it ushered out Craig Becker (D) as a member of the NLRB. Without Member Becker, the NLRB was left with only two members, Chairman Mark Pearce (D) and Board Member Brian Hayes (R).
A 2011 Supreme Court ruling in the New Process Steel case said the Board could not rule on cases, regulations or other legal decisions unless it had at least three of its five board members. So, Becker’s departure would mean that the Board was unable to operate.
One day after his term expired, the President recess-appointed Block, Griffin and Flynn to fill out the Board. While the President has constitutional authority to “fill up all vacancies that may happen during the recess of the Senate,” these appointments are extraordinary because the Senate was technically not in recess based on past Senate practice and previous interpretations of what constituted a congressional recess.
The practice of recess appointments has been contentious for years. There will likely be legal challenges to the legitimacy of these NLRB appointments. Stay tuned here for updates.