Remember those 40-Second Pro Forma Senate Sessions?

The Jurist, an excellent website produced by the University of Pittsburgh School of Law, reports that the U.S. Supreme Court has agreed to hear a case about the validity of National Labor Relations Board rulings handed down by just two members of the NLRB:

The court also agreed to hear New Process Steel, L.P. v. National Labor Relations Board [docket; cert. petition, PDF]. The Court will consider whether the National Labor Relations Board (NLRB) [official website] has the authority to decide cases where only two of the five-member board are present. Section 3(b) of the National Labor Relations Act [29 USC § 153(b)] provides that three members is enough to constitute a quorum of the NLRB. The US Court of Appeals for the Seventh Circuit found [opinion, PDF] that the NLRB had acted appropriately and affirmed its decision in full. The US Department of Justice (DOJ) [official website] has urged the Court to uphold [JURIST report] all decisions by the two-member board.

Let’s be frank about the partisan politics the led us to this state: The reason the NLRB operated for so long without at least a three-member quorum is that the Senate Democratic majority refused to confirm President Bush’s nominees out of unhappiness with his labor policies. And, in 2007 and 2008, Majority Leader Harry Reid decided to start holding twice weekly pro forma sessions — often less than a minute long — in order to block recess appointments by President Bush. So this litigation and the Supreme Court’s review grow directly out of this partisan dispute, in which organized labor took a keen interest.

Although the politics of this probably falls outside the Supreme Court’s purview, overturning the two-member NLRB rulings would reward the strategy to block the recess appointments and encourage future Senate majorities to repeat the practice.

See also NLRB news release.

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