May 16 was a bad day for the National Labor Relations Board (NLRB). First, yet another federal circuit court ruled that two current NLRB members had been illegally appointed. Then, Republican senators fired opening salvos in a bid to dump the two current board members and slow down the confirmation of two new NLRB nominees.
The 3rd Circuit Court of Appeals joined the District of Columbia Circuit in ruling that President Obama exceeded his constitutional authority with his January 2012 recess appointments of Sharon Block and Richard Griffin to the NLRB.
The Obama administration earlier vowed to appeal the D.C. Circuit’s decision to the U.S. Supreme Court. (Background: Read "Appeals court rules Obama's NLRB appointments were illegal.")
The news didn’t get any better for the NLRB when the Senate Committee on Health, Education, Labor and Pensions (HELP) opened hearings on board nominations. Several Republicans praised new nominees Philip Miscimarra and Harry Johnson—Republicans themselves—but said they would try to block reconfirmation of Block and Griffin.
The increasingly likely outcome: A Republican filibuster of all the nominees, with Democrats unable to muster a 60-vote supermajority to force a confirmation vote. If that happens, the NLRB will lack a quorum by the end of August, and be unable to issue any rulings at all.