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Love’s Labor Lost: Legal Challenges to President Obama’s NLRB Recess Appointments
As anticipated, business groups have begun filing legal motions challenging the legality of President Obama’s recess appointment of three members to the National Labor Relations Board. The motions, filed in federal district court in Washington, D.C. on January 13, 2012 by The National Federation of Independent Business (NFIB) and the National Right to Work Foundation (NRWF), claim that President Obama’s appointments are illegal because they circumvented the Senate confirmation process. The NFIB’s challenge called the action a "brazen circumvention of the Congressional appointment process." The challenges are part of the prior lawsuit filed against the NLRB to prevent the Board from requiring businesses to post information advising workers of their right to form a union.

U.S. Department of Justice Upholds Appointments
Prior to the challenges, the U.S. Department of Justice issued a memorandum outlining its legal opinion supporting President Obama’s appointments. In its report, the Justice Department said that the president had authority to make such appointments because the Senate was on a 20-day recess. Republicans have argued that the Senate was not in a “self-declared recess” because it held several pro forma sessions during this time period and, therefore, the Constitution’s Recess Appointments Clause does not apply, invalidating the appointments. However, the pro forma sessions, some of which simply had one member of the Senate present, were not sufficient to establish that the Senate was in session and able to exercise its constitutional authority to advise and consent to normal presidential nominations, according to the Justice Department.

The Recess Appointments Clause
Central to the debate will be interpretation of the language of the Constitution’s Recess Appointments Clause, which states:

“The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

Argument will center around the meaning of two key words, “happen” and “recess,” which are not clearly defined. Analysis of the definition of these two words has been explored by the University of Pennsylvania’s Program on Regulation, and is explained below:

If “happen” means “happen to arise,” then the President can only fill positions that first become vacant during a Senate recess. If “happen” means “happen to exist,” then the President can fill any vacancies that still exist during a recess. The interpretation of these words is crucial because only one of the President’s three recess appointments to the NLRB fills a vacancy that arose after senators left for the holiday break.

If “recess” only refers to “intersession” recesses, which are annual breaks between sessions of Congress, then the President would have only one opportunity a year to make recess appointments. On the other hand, if “recess” refers to both intersession and “intrasession” recesses, which are generally breaks of at least three days that typically occur around national holidays, then the President would have six or seven chances throughout the year to make recess appointments.

The interpretation of these words is key because, in its memorandum cited above, the Department of Justice defended the constitutionality of the recess appointments by arguing that pro forma sessions do not interrupt an “intrasession” recess.
We will continue to monitor the litigation pending against the NLRB on both the board appointments and employer posting issues. If you have read this article and want to be entered into a drawing for a $50 gift card to Applebee’s restaurant, just send an e-mail with the word “recess” in the subject line to by March 1, 2012. As always, if you have questions about this or any other employment or labor law matter, please call or e-mail me at 414-988-8403 or

Posted 2/10/2012
If you have any questions or comments, please contact me at 414-423-1330 or via e-mail at:
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
Legislative Partner

Krukowski &
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
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