Monday, January 16, 2012
Two pro-business groups, including the National Right To Work Foundation, are challenging President Obama's recess appointments to the NLRB. As can be expected, Obama's Justice Department issued a formal opinion which concluded that such appointments were appropriate. A copy of the Justice Department Memo is available here.
I do not profess to be an expert here, but it seems to me that there is a tension between the advice and consent portion of the constitution with the power to issue recess appointments-particularly where there are back to back recess appointments as in the case of the NLRB. Readers will recall that Craig Becker, whose recess appointment just expired, was appointed last year under a recess appointment.
Law review commentary on this important issue would be most welcome.
Mitchell H. Rubinstein
Hat Tip: Workplace Prof Blog