In College Football Bowl week terminology, some would say President Obama ran an “end-around” play on the Senate yesterday. Using his recess appointment power, he filled the three vacancies on the National Labor Relations Board, despite the Senate’s refusal to act on those appointments. President Obama appointed his two most recent nominees, Deputy Labor Secretary Sharon Block (D) and union attorney Richard Griffin (D), to year long positions. Obama also appointed Board counsel Terence Flynn (R), whose appointment had lingered for nearly a year, to fill the final vacancy on the five-member board, giving it a full contingent for the first time in a number of years.
The Chamber of Commerce, and Republicans, expressed immediate outrage and questioned whether the recess appointments were legal. The argument against the appointments centers on the meaning of the recess appointment power contained in the U.S. Constitution. Republicans point out there is not currently a “recess” as neither chamber has passed an adjournment resolution, and both chambers have been holding pro-forma sessions every three days.
Whether the Chamber of Commerce or other business groups will file a lawsuit challenging the recess appointments is yet to be seen. Labor professionals should monitor these developments as such a lawsuit would join a growing string of litigation involving the NLRB.