Washington D.C. Employment Law Update
Congress Responds to NLRB Recess Appointments
As expected, members of the House of Representatives opposed to the President’s recent recess appointments to the National Labor Relations Board have voiced their disapproval legislatively. On January 10, 2012, Rep. Diane Black (R-TN) introduced a resolution formally condemning Obama’s controversial decision to make recess appointments while the Senate was holding periodic pro forma sessions. Although the Department of Justice issued a memorandum opinion (pdf) sanctioning the President’s authority to make these appointments, Rep. Black claimed that “[t]hese appointments are an affront to the Constitution.” According to Black, “the appointments in question were made while the Senate was in pro forma session and the House had not consented to a Senate adjournment,” as is required under article 1, section 5, clause 4 of the U.S. Constitution.
To date, the House has not yet scheduled a vote on this resolution. Even if approved, the measure can be considered largely symbolic, as it would be nonbinding.
Days after Black offered her resolution of disapproval, however, Rep. Jeff Landry (R-LA) introduced the Executive Appointments Reform Act (EARA) (H.R. 3770), a bill that would, among other things, prevent the NLRB from having a quorum until the Senate confirms the new appointees. Without a quorum, the Board would lose the power to issue decisions, promulgate and enforce new rules, and preside over appeals.
Specifically, the bill would amend the National Labor Relations Act by adding the following provision to Section 3(b): “A quorum shall not be constituted by any member of the Board who shall not have been confirmed by the Senate.” In addition, the bill would prevent individuals from being paid who are “appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate.” The measure also would ban individuals from volunteering to fill the vacant positions or otherwise working for free under such circumstances. If enacted, the provisions of this bill would be retroactive to the first of the year.
In a press release, Landry stated:
As a tireless supporter of the Constitution, I believe the Recess Appointments Clause serves a very important purpose; however, it’s clear the Founding Fathers included the clause to provide the continuity of government not as a way to circumvent the “Advice and Consent of the Senate.” So as we wait for the Court to declare Obama’s appointments as unconstitutional, it is important Congress take steps now to end this gross Executive overreach and prevent similar power grabs from happening again.
The same day Rep. Landry introduced the EARA, President Obama’s move to seat three new Board members via recess appointment received its first judicial challenge. The U.S. District Court for the District of Columbia will likely be the first federal court to consider the legality of the appointments.