Employment Law Report

House Committee to Hold Hearings on President’s Recess Appointments to NLRB

By Edwin S. Hopson

On February 1, 2012, the U.S. House Oversight and Government Reform Committee was to hold a hearing entitled “Uncharted Territory: What are the Consequences of President Obama’s Unprecedented ‘Recess’ Appointments.” The purpose of the hearing was to explore the possible consequences of the President’s three recess appointments to the National Labor Relations Board and the recess appointment of the Director of the Consumer Financial Protection Bureau on January 4, 2012.

 Republican Committee Chairman Darrell Issa stated in a preview statement posted on the committee’s website:

 “If the United States Senate can pass a bill and send it to the President for his signature, it is clearly not in recess. But a “recess” is exactly what President Obama has argued in justifying four recent appointments.”

 In prepared testimony, opponents of the appointments argue that with respect to the NLRB that all future decisions and regulations issued by the Board will be under a “cloud” and subject to constitutional challenge until the issue is resolved.  They argue that the Senate had not recessed and was holding a series of “pro forma” sessions. 

Proponents of the President’s action argue he had no choice since, in the case of the NLRB, it was about to be shutout from issuing decisions for lack of a quorum with the expiration of Member Becker’s recess appointment in early January.

It is not clear what if any action could be taken by the House of Representatives other than to perhaps develop a “road map” for use in a later court challenge of the appointments.

 The U.S. House Education and the Workforce Committee is planning a similar hearing for February 7, 2012.