The House Education and the Workforce Committee held a hearing on President Obama’s January 4, 2012 "recess" appointments to the National Labor Relations Board. The hearing is the second of three scheduled on this issue — as the House Oversight and Government Reform Committee held a hearing last week, and the Judiciary Committee will hold one next.


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Chairman John Kline (R-MN) opened the hearing asserting that the President’s actions created a "constitutional crisis" as the Senate was in pro forma session at the time:

Thanks to the president’s action, three scarcely known individuals are now empowered to dramatically transform our nation’s workforce. The highly controversial nature of the appointments guarantees the rules and decisions the new board members adopt will be constitutionally suspect and legally challenged. Even the president’s own Justice Department, in what I would characterize as an understatement of the gravity of the situation, noted the issues surrounding these appointments “create some litigation risk.”
Make no mistake, every action taken by the board will be tainted, creating greater uncertainty for employers and additional costs for taxpayers.

House Democrats argued the recess appointments were necessary to overcome obstruction and to keep the government functioning. Rep. George Miller (D-CA), the committee’s ranking Democrat, declared the proceeding wasteful: "Today is just another legislative day dedicated to divisive issues."
Per the Wall Street Journal‘s Melanie Trottman:

Mr. Miller said it will likely be the Supreme Court, not Congress, that decides whether the recess appointments violated the Constitution, and the committee should be focusing its efforts on other issues such as job creation instead of having its sixth hearing “attacking” the NLRB.

Whether or not the three appointments are legitimate is a fundamental issue with fairly pressing consequences. If they are not, under the Supreme Court’s 2010 New Process Steel decision, the Board lacks a requisite quorum for official action. The Board would be precluded from issuing Orders in cases before it, or from further rule-making activity. Near the top of the Board’s list of priorities is to implement the rest of its proposed rules to expedite union representation elections. Several organizations have filed suit challenging the President’s appointments, but Board Chairman Mark Gaston Pearce has indicated unequivocally that the Board will proceed to consider all remaining elements of the changes proposed last June. Chairman Pearce recently told the Associated Press:

“We presume the constitutionality of the president’s appointments and we go forward based on that understanding.”