President Barack Obama’s controversial appointments to the National Labor Relations Board (“NLRB”) have sparked a constitutional firestorm and subsequent legal battle that could potentially alter the makeup of the labor board.

On January 4th, without the Senate’s consent, President Obama appointed three new members to the NLRB as well as the head of the new Consumer Financial Protection Bureau. Under federal law, nominees for the five-member NLRB require Senate confirmation before assuming their posts. The Constitution, however, provides the ability for the president “to fill up all Vacancies that may happen during the Recess of the Senate.” U.S. Const. art. II, § 2. As a result, the president is afforded the power to bypass the Senate and make recess appointments, provided that the Senate is actually in recess.

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