Staff attorneys at the National Right to Work Foundation have filed an amicus brief in a challenge to President Barack Obama’s recess appointments to the NLRB. The president named three members, including the now-departed Terence F. Flynn, to the board in January. Critics claim that because the Senate was in pro forma session, the president overstepped his ability to make federal appointments via the recess appointments clause.

Foundation attorneys filed the amicus brief on Monday in the case Center for Social Change, Inc v NLRB, pending now before the U.S. Court of Appeals for the District of Columbia Circuit. Attorneys are also assisting the prosecution of a suit pending in the U.S. Court of Appeals for the Seventh Circuit in Chicago. That case is among the first in the nation to reach the appellate courts challenging the Obama recess appointments and will help set the standard for all further challenges.

Should the United States Supreme Court eventually rule on the matter and find that the president overstepped his authority, it would reduce the NLRB to two members, thereby denying it quorum under the Court’s New Process Steel v NLRB decision. Such a ruling would mean that the board has lacked a quorum since December 31, 2011 and would invalidate every decision and rulemaking made since Member Craig Becker’s recess appointment ended on that date. Supporters of the president have argued that the Senate was not able to consult on appointments during the relevant period, despite the pro-forma status, and that the president was therefore authorized to make the appointments.

Source: WKL&B Editorial Staff.