Recess Appointment in the Cards?

For the past two years the National Labor Relations Board has operated with only two members instead of its normal complement of five.  Last Tuesday the Supreme Court heard arguments on whether the Board legally issued the 500 or so decisions it issued while it was down to two members.

The legal issue turns on an interpretation of the section of the National Labor Relations Act in which the five member Board can delegate its authority a three member panel, and then whether that three member panel can delegate its authority to a two member panel.  That's what happened in December 2007 when one of the Board members' terms ended.

The case, New Process Steel, is less of a labor case and more of a statutory interpretation case.  But what it really points out is the ridiculous recalcitrance of the Congress in appointing members (such as Craig Becker) to the Board -- and Obama's reluctance to deal with the vacancies through recess appointments.  Indeed, Chief Justice Roberts made just this point when he asked one of the lawyers why the President didn't just recess appoint members:  "And the recess appointment doesn't work why?"

Look for Obama to appoint Becker and the other nominees over the next break.