President Barack Obama’s recess appointment of three members to the National Labor Relations Board was challenged in court by the National Federation of Independent Business, which claims a constitutional violation.
The filing yesterday may be the first legal action targeting the White House appointments made without Senate confirmation on Jan. 4 during a brief congressional break. It was made as part of an existing lawsuit in federal court in Washington over a new NLRB rule that requires employers to notify workers of their rights to form a union.
Without a legal quorum, the board has no authority to enforce the rule, the NFIB, which was joined by four other groups and companies in the filing, argued.
“The grounds for the motion are that very significant events have transpired since the filing of the complaints in this case, particularly within the last ten days,” according to the filing. “The president purported to appoint the new members without the advice and consent of the Senate.”
Republican lawmakers criticized Obama’s decision to name three NLRB members and the first head of the Consumer Financial Protection Bureau, Richard Cordray, during the congressional recess when the Senate was in so-called pro forma session.
The Constitution gives presidents the power to make appointments when the Senate is in recess. Republicans won bipartisan agreement to keep Congress in pro forma sessions every three days through the holidays in an attempt to keep Obama from filling vacancies.
Obama’s recess appointments were supported by Democratic leaders in the House and Senate and drew rebukes from House Speaker John Boehner of Ohio and Senate Minority Leader Mitch McConnell of Kentucky, both Republicans.
“The president’s action was a surprise and terrible disappointment to small-business owners throughout the country who have suffered under the unabashedly pro-union rule-makings handed down by the NLRB,” Karen Harned, executive director of NFIB’s Small Business Legal Center, wrote in a press release.
Yesterday’s filing contends that only Senate confirmation would restore authority to the board.
“The moving co-plaintiffs are entitled to an order from the court declaring that the board no longer has authority to implement or enforce” the rule at issue in the lawsuit, which ordered employers to display notices informing workers about their rights to form a union and bargain on contracts. The rule is scheduled to go into effect on April 30.
The U.S. Justice Department advised the White House in a memo released this week that both the Constitution and precedent support the appointments.
The case is National Association of Manufacturers v. National Labor Relations Board, 1:11-cv-1629, U.S. District Court, District of Columbia (Washington).