Sunday, January 15, 2012
Although it was only a matter of time, this came faster than I expected: there has already been a legal challenge to the NLRB recess appointments. The National Federation of Independent Business and the National Right to Work Foundation are arguing that the appointments violate the Constitution. I won't get into that argument here (although I'll note that the DOJ's Office of Legal Counsel, perhaps not surprisingly, has just released an opinion that they are legal). Instead, putting on my Fed Courts hat, I'm wondering whether there's any jurisdiction for this claim.
The issue is that, probably to get a quick challenge filed, the groups used their existing challenge to the NLRB's notice posting rule to question the legality of the recess appointments. I see at least two potential jurisdictional problems. First is that the notice posting rule was promulgated before the recess appointments were made. Honestly, this seems like a slam-dunk no-standing argument for the NLRB. Until the NLRB actually enforces the rule, where standing wouldn't be an issue for the employer involved (at least if there was an unfair labor practice decision by the new Board), I don't see how the groups can argue that they, or anyone else for that matter, has standing. Second, there's a decent political question issue here. I could see the Supreme Court going either way on this, but I could easily come up with an argument that the courts should avoid addressing whether the pro forma Senate sessions are enough to block recess appointments because it's really just a fight between the legislative and executive branches that shouldn't involve the judiciary. But we'll see what happens.
Hat Tip: Patrick Kavanagh