On February 1, 2012, the U.S. House Oversight and
Government Reform Committee was to hold a hearing entitled "Uncharted
Territory: What are the Consequences of President Obama's Unprecedented
'Recess' Appointments." The purpose of the hearing was to explore the possible
consequences of the President's three recess appointments to the National Labor
Relations Board and the recess appointment of the Director of the Consumer
Financial Protection Bureau on January 4, 2012.
Republican Committee Chairman Darrell Issa stated
in a preview statement posted on the committee's website:
"If the United States Senate can pass a bill and
send it to the President for his signature, it is clearly not in recess. But a
"recess" is exactly what President Obama has argued in justifying four recent
In prepared testimony, opponents of the appointments
argue that with respect to the NLRB that all future decisions and regulations
issued by the Board will be under a "cloud" and subject to constitutional
challenge until the issue is resolved. They argue that the Senate had not
recessed and was holding a series of "pro forma" sessions.
Proponents of the President's action argue he had no
choice since, in the case of the NLRB, it was about to be shutout from issuing
decisions for lack of a quorum with the expiration of Member Becker's recess
appointment in early January.
It is not clear what if any action could be taken by the
House of Representatives other than to perhaps develop a "road map" for use in
a later court challenge of the appointments.
The U.S. House Education and the Workforce Committee
is planning a similar hearing for February 7, 2012.
Read about additional Labor and Employment
Law Developments by Edwin S. Hopson in
the Wyatt Employment Law
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