'Unconstitutional, Null and Void'

President Obama’s “recess” appointments to the National Labor Relations Board are being taken to court:

U.S. District Judge Amy Berman Jackson in Washington is hearing business challenges to a rule, not yet put into effect by the NLRB, that would require as many as six million employers to put up in their workplaces a permanent poster that notifies their employees of the legal rights they have under federal labor law.  That requirement, the so-called “notice posting” rule, is now due to go into effect on April 30.  It had been set to go into effect at the end of this month, but the Board postponed it in December at Judge Jackson’s specific request while she ponders the challenge (pending in National Association of Manufacturers, et al., v. NLRB, District Court docket 11-1629).

Although that rule was put into final form by the Board before the President early this month gave “recess appointments” to three new members, the motion filed Friday argued that those appointments are “unconstitutional, null and void,” reducing the Board to only two members, and thus the Board “no longer has authority to implement or enforce the Notice Rule on its purported effective date of April 30, 2012.”  (Under the Supreme Court decision in 2010, in New Process Steel, L.P. v. NLRB, the Board cannot take action with only two of its allotted five members.)

The potentially momentous fight over the Obama nominations thus will go first to a federal judge who has been on the bench for less than a year.  Named by President Obama initially in 2010 and renominated last year, she won unanimous Senate approval and formally joined the D.C. District Court last March 18.

An Obama appointee will rule on a very controversial and unprecedented Obama action. The heart of the issue is whether the president can simply deem the Senate to be in recess despite the fact that it does not consider itself in recess, and it continues to conduct business. At the time of the Obama appointments, the Senate continued to conduct real business.