Obama's "Recess" Appointments To NLRB: Will They Stand?


Last week President Barack Obama announced "recess" appointments to the National Labor Relations Board of his three currently-pending Board nominees, two Democrats and one Republican. With these appointments the Board again will be at full strength with five members: three Democrats and two Republicans. The two Board members before the appointments were Chairman Mark Pearce, a Democrat, and Brian Hayes, a Republican. (Member Craig Becker's recess appointment expired on December 31.)

With respect to the latest appointees, "recess" is in quotation marks because Congress was not technically in recess on January 5, when the President made these appointments. Normally, recess appointments take place when Congress is not in session in order to fill positions without any need for Senate confirmation. In this case, Republican representatives technically prevented a recess from occurring by holding pro forma sessions at least once every three days. The President apparently considers the break with pro forma sessions to be the equivalent of a recess, but it is not at all clear that he is right. Already the U.S. Chamber of Commerce has indicated that it is considering filing suit to block the appointments. How this and any other challenges to the appointments play out will definitely be worth watching.

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