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Is A Recess Appointment Valid If The Senate Says It's Not Really Gone?

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Is A Recess Appointment Valid If The Senate Says It's Not Really Gone?

Is A Recess Appointment Valid If The Senate Says It's Not Really Gone?

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It doesn't matter which party controls the White House, presidents always seem take heat for making recess appointments - that's filling jobs when Congress is not at work. The issue today comes before a federal appeals court here in Washington, D.C. The Obama White House says it was forced to install three members of the National Labor Relations Board in January because of inaction by Senate Republicans. Those lawmakers argue the Senate wasn't really in a recess at that time. Here's NPR's Carrie Johnson.

CARRIE JOHNSON, BYLINE: Does this sound like a workday to you?


UNIDENTIFIED WOMAN: Washington, D.C. January 6th, 2012. To the Senate, under the provisions of rule one, paragraph three of the Standing Rules of the Senate, I hereby appoint the Honorable Jim Webb, a senator from the commonwealth of Virginia, to perform the duties of the chair, signed Daniel K. Inouye, president pro tempore.

SENATOR JIM WEBB: Under the previous order, the Senate stands adjourned until 11 am on Tuesday, January 10th, 2012.

JOHNSON: No votes, no legislation, no nominations, and 30 seconds later, no more Senate. Whether that day in January and 19 more like it constitute legitimate business in Congress is a question for the federal appeals court. The U.S. Constitution says the president needs to get advice and consent from the Senate before filling certain jobs, unless the openings come up during a recess. It's who defines recess that's the problem. Miguel Estrada is a Washington lawyer who's representing the views of dozens of Republican senators.

MIGUEL ESTRADA: The Constitution itself says that each house of Congress is the master of its own rules.

JOHNSON: The master of its own rules, putting the Senate in charge. Not so fast, White House counsel Kathryn Ruemmler told NPR earlier this year.

KATHRYN RUEMMLER: Our view is that a pro forma session at which the Senate, by its own definition, is not conducting any business and is unavailable to provide advice and consent on the president's nominees is, for all practical and functional purposes, in recess.

JOHNSON: The issue's being litigated in federal courts all over the country. But today's case comes from a Washington state company named Noel Canning, which bottles and distributes Pepsi Cola products. The company's challenging an unfavorable decision by the National Labor Relations Board this year.

Noel Canning argues the Labor Board can't force it to sign off on a collective bargaining agreement with the Teamsters union. In fact, the company says, the NLRB wasn't really fit to do business, because three of its members were not appointed properly under the law. Lily Fu Claffee is the top lawyer at the U.S. Chamber of Commerce.

LILY FU CLAFFEE: The issue of whether the recess - president's recess appointments are valid was going to get litigated, one way or another. And we, on behalf of the business community, wanted to make sure that it got litigated as soon as possible, and that we had certainty as soon as possible.

JOHNSON: The Justice Department, which is arguing for President Obama, says he was only fulfilling his constitutional responsibilities to keep government agencies running. Lynn Rhinehart is general counsel of the AFL-CIO.

LYNN RHINEHART: If the president hadn't done what he did, a really important agency responsible for enforcing workers' rights in the workplace would have literally gone dark. It wouldn't have had enough members to actually function, and it wouldn't have been able to enforce the law.

JOHNSON: The appeals court ruling could have big consequences for labor and business. The National Labor Relations Board has acted in more than 200 cases since its new members arrived in January. All of those decisions - and dozens more the three new members of the NLRB make before their terms expire next year - will be under a cloud of uncertainty until the federal courts weigh in.

Carrie Johnson, NPR News, Washington.

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