For some attorneys, part of their law practice management involves keeping up-to-date on what various government agencies are doing so they can keep their clients informed of new requirements and new regulations. For business law attorneys or those with corporate or labor clients, this means keeping up with the National Labor Relations Board (NLRB). Recently, however, a court decision has thrown NLRB decisions into question.
According to Forbes, the court determined that appointments to the National Labor Relations Board had been made in violation of the Constitution. The U.S. Constitution requires that the president seek the “advice and consent” of the senate before making appointments to certain positions. President Obama was not able to get his nominees for some positions through the Congress. President Obama instead made what he called “recess appointments.” Many past presidents have made a number of recess appointments when the senate was in recess for the holidays and this normally would not have been controversial.
However, in this case, the senate was not actually in recess. They were holding pro forma sessions where they gaveled in once every few days in order to stay in session so no recess appointments could be made. This was a trick originally used during the administration of George W. Bush to block a recess appointment. President Obama, however, declared that the senate was in recess (even though they said they weren’t) and made his appointments to the NLRB. Unfortunately, the court determined that this was not in accordance with the Constitution, thus the appointments were not valid.
There almost certainly will be appeals to an en banc panel in D.C. and then to the Supreme Court if necessary. All attorneys practicing within the field of labor law or Constitutional law should be watching the case carefully as part of law practice management.