The first challenge to President Obama's recess appointments, which was an attempt to bootstrap the issue to a federal lawsuit targeting the constitutionality of the National Labor Relations Board's ("NLRB") notice-posting rule, has come and gone. The court did not address the constitutionality of the President's appointments, who emerged unscathed. Now, and more determined than ever, business groups are picking up the gauntlet and challenging the appointments through more conventional means.

As we reported earlier, the National Right to Work Foundation (“NRWF”), was the first to ensure the issue of the constitutionality of the President's appointments would be decided when it filed motions in six cases it has with the NLRB seeking to disqualify the three purported recess appointees from participating in those cases.

On February 24, 2012, Noel Canning, a bottling company, took a different approach and filed a lawsuit (Noel Canning v. NLRB, No. 12-1115 pending in the United States Court of Appeals for the District of Columbia Circuit) appealing the NLRB's February 8, 2012 decision that held that it violated the National Labor Relations Act ("NLRA") by unlawfully refusing to reduce to writing a verbal collective bargaining agreement with a union. According to Noel Canning's Petition for Review, the NLRB's decision was invalid. While the decision was decided by three of the five NLRB members, two of the three decision makers (Sharon Block and Terence F. Flynn) are two of the controversial appointees whose appointments are being challenged as unconstitutional. Accordingly, if the recess appointments are deemed unconstitutional, the decision was rendered by only one NLRB member, not with the statutorily required quorum of at least three members, and the decision would be invalid.

On March 15, 2012, the U.S. Chamber of Commerce ("Chamber"), joined by the Coalition for a Democratic Workplace ("CDW"), came through on the promises it made after the controversial recess appointments and took legal action by filing a motion to intervene in the Noel Canning lawsuit. The motion to intervene, according to the Chamber, is designed to get a swift and decisive ruling as to whether the President’s recess appointments to the NLRB unlawfully circumvented the Senate’s constitutional power to provide advice and consent to the appointment of executive branch officers. Thus, while the actual issue in the case is quite narrow, the case gives the Chamber and the CDW the means to make the more important argument challenging the constitutionality of the President's appointments.

The issue of the constitutionality of the President's recess appointments now sits before the NLRB and before the U.S. District Court of Appeals for the District of Columbia Circuit. No doubt, these two cases will not be the last of the challenges we see in either forum, but more importantly, we are getting closer to a decision as to the constitutionality of the President's recess appointments a decision that will certainly impact not only labor law for some time but constitutional law going forward.