As we previously noted, the constitutionality of the NLRB is an open question these days.  A few weeks ago, House Republicans jumped into the fray and convened a full-fledged hearing on the matter.   That might have been interesting theatre, but, ultimately it did not mean much as far as figuring out if the current Board is legit or not.  After all, thanks to Justice Marshall, it takes a court to rule that a particular action is unconstitutional.

Well, a federal district court in New York is now facing the issue.  According to Reuters, the court entertained oral arguments last week from the employer Reassiance Equity Holdings, and the Justice Department.  What was interesting was the employer’s choice of legal counsel — Paul Clement, the former Solicitor General of the United States.  Mr. Clement is a constitutional heavyweight (more so than a labor lawyer, though he also represented the NFL in its labor litigation this summer) and his brief will certainly be taken seriously by the court.

Basically, Clement argued that the recess appointments are not valid because the Senate was not really in recess; the Justice Department claimed that the Board previously delegated the authority in question to the General Counsel’s office for the charge in question in the case.   And, in the alternative, that the appointments are legal anyway.

As I stated before, I would not counsel any company to take any labor action with the far-off hope that the appointments will be declared unconstitutional.  But, that being said, this is still a highly interesting intersection between constitutional law and labor law, with major players from both areas now deep into the fray.

Stay tuned….