Today the New York Times ran an article by its Chief Washington Correspondent Carl Hulse which discussed our brief in the NLRB v. Canning case being argued Monday. The article, entitled “Role Reversals Emerge in Dispute Over Obama’s Recess Appointments,” discussed Bill Olson’s recess appointment by President Reagan in 1981 to be Chairman of the Board of the Legal Services Corporation.
The article does not mention that President Reagan’s appointments of Bill and the other directors were challenged in U.S. District Court for the District of Columbia by the board members appointed by President Carter, including one of Bill’s predecessor as Board Chairman — Hillary Rodham, then First Lady of Arkansas. There, the 1982 challenge was on a different basis than the Canning case. In 1982, the contention was that LSC Board Members were not “Officers of the United States” within the meaning of Article II, section 2, clause 2 of the U.S. Constitution. The Rodham challenge was rejected by District Judge Norma Holloway Johnson, who pointed out the irony that four of the former directors filing the challenge had been appointed by President Carter, using the same recess appointment power which those plaintiffs were challenging.