NLRB Recess Appointments
On January 4, 2012, President Obama announced the appointments of Sharon Block, Terence F. Flynn, and Richard Griffin to the National Labor Relations Board. This brought the Board to its full five-member strength for the first time since August 2010. On the same day, the President announced the appointment of Richard Cordray as Director of the Consumer Financial Protection Bureau.
The January appointments have been the subject of significant controversy. The Senate's "advice and consent" is constitutionally required for a great many presidential appointments, although the President is also constitutionally empowered to make appointments while the Senate is in recess without its consent. These "recess appointments" expire, under the Recess Appointments Clause, at the close of the Senate's "next Session." (U.S. Const. art. II, para. 2, cl. 3)
The Senate can therefore prevent such appointments by remaining in session without recess. Since 2007 the Senate has sometimes conducted so-called "pro forma sessions" to prevent recess appointments, and until this year, no president has challenged that practice; in fact, in recent history, presidents have typically made such appointments only during a recess of at least three days. The Senate resolution commencing the pro forma sessions on December 17, 2011 (they were held every Tuesday and Friday through January 23, 2012) indicated that no business of the Senate would be conducted during this time. However, the Senate did conduct some business after starting the pro forma sessions; the payroll tax holiday extension was passed by unanimous consent during this time period.
According to the White House at the time the appointments were announced, the administration concluded that as a matter of law, the Senate remained in recess during these sessions. The President directly challenged the Senate in an address the day after the appointments were announced, stating "I refuse to take 'no' for an answer . . . I am not going to stand by while a minority in the Senate puts party ideology ahead of the people we were elected to serve." The Department of Justice's Office of Legal Counsel issued a fairly lengthy opinion on January 6, 2012, concluding that the pro forma sessions were no impediment to recess appointments. OLC's opinion appears to rely heavily on the Senate's announcement that "no business is to be conducted" at the pro forma sessions, and it also cited separation of powers concerns raised by the possibility of permitting pro forma sessions to block the Executive's appointment powers.1
Both the CFPB and the NLRB were significantly hampered without the recess appointees: the NLRB is unable to issue decisions with only two members pursuant to the Supreme Court's decision in New Process Steel v. NLRB, 130 S.Ct. 2635 (2010) and the CFPB's Director is its senior executive. However, repeated legal challenges to the legitimacy of actions taken by the Board's recess appointees appear virtually inevitable and may also present a significant hurdle to the Board's efficacy. As the OLC noted in its opinion, "the substantial arguments on each side create some litigation risk for such appointments." 36 Op. O.L.C. supra, slip op. at 4.
A recent piece in the Daily Labor Report raised the interesting related issue of whether former Board Member Craig Becker's recess appointment of March 2010 expired at the commencement of the pro forma sessions on December 17, 2011; on December 30, 2011, arguably the last pro forma meeting of the first session of the 112th Senate; or rather when the second session of the 112th Senate commenced in a pro forma session on January 3, 2012, as the Board has indicated.2 As the Board and Member Becker continued to conduct business throughout the month of December 2011, it appears likely that this too may be the basis of challenges to its legal authority for the actions it took during that period.
1 Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. No. ___ (January 5, 2012)
2 F. Curt Kirschner, Jr. and Kye D. Pawlenko, Quorum Call: When Did NLRB Member Becker's Term End?, 356 DLR I-1, February 22, 2012
Jennifer Spector is a member of the Section of Labor and Employment Law Employment Rights & Responsibilities Committee and a Senior Field Attorney in the Philadelphia Regional Office of the National Labor Relations Board. The views in this article are Ms. Spector's own and do not necessarily represent those of the National Labor Relations Board.
Comments from the Chair
NLRB Recess Appointments