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Latest News - January 2012

January 23, 2012
Business Fighting Obama's NLRB Recess Picks In Court

President Obama's new appointees to the National Labor Relations Board will face a series of legal challenges from business groups, as congressional Republicans continue their own attack.

All are pushing the same basic argument: Obama improperly used his recess appointment power because the Congress wasn't officially in recess.

"This power grab threatens the role of Congress and raises serious constitutional questions," said House Judiciary Committee Chairman Lamar Smith, R-Texas, in a statement Monday. He said his panel will hold hearings on the issue next month.

The White House may have made the NLRB appointments to provoke just such a reaction. It has been pushing an election-year theme that it is fighting a "do-nothing" Congress and "fat cats" on Wall Street.

Legal challenges could end up at the Supreme Court. If Obama loses, the NLRB would lack a quorum and its decisions involving the new members invalidated.

First up is a joint challenge by the National Federation of Independent Business, the National Right to Work Legal Defense Foundation, and the Coalition for a Democratic Workplace. It is built on to their earlier challenge to a proposed NLRB rule on posting union rights in workplaces.

The NLRB recently amended their pending case's legal documents to include the new board members. The three business groups say that their appointments are invalid and thus they cannot be added.

But the NLRB rule was under way long before the new members joined. A judge may decide their status is a separate issue.

"Sometimes judges just don't rule on this. There is not a ton of law on recess appointments," said Karen Harned, executive director of the NFIB's legal center.

In that case, business groups will simply await action by the new board. The Chamber of Commerce will challenge the appointees' constitutionality after the NLRB's first complaint, probably in February, a source says.

"It would be almost malpractice for a lawyer not to raise the recess appointment issue," the source said.

Recess appointments were initially intended as an emergency remedy for the White House to temporarily fill a key post if Congress will not convene in time.

Presidents have since used it to appoint people that the Senate opposes by waiting until lawmakers left town. During the Bush administration, Majority Leader Harry Reid, D-Nev., responded by keeping the Senate technically in session during breaks.

Republicans have used the same tactic since then. Earlier this month the White House made the appointments anyway, installing three NLRB members as well as the Consumer Financial Protection Board's director.



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