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Experts: High Court Will Probably Rule NLRB Appointments Unconstitutional

By Joanne Deschenaux  1/13/2014

The U.S. Supreme Court is likely to rule that President Barack Obama's appointment of three members of the National Labor Relations Board (NLRB) in January 2012 violated the U.S. Constitution, Marshall Babson, a former NLRB member who attended the Jan. 13, 2014, arguments in NLRB v. Noel Canning (No. 12-1281), told SHRM Online.

Noel Canning, the Washington state bottling company that is challenging the appointments, “did extremely well” in supporting its position, according to Babson, who is now an attorney in Seyfarth Shaw’s Washington, D.C., office. “The court—virtually unanimously—seemed to feel that the language of the [U.S Constitution’s] Appointment Clause is pretty clear” and did not authorize the presidential actions at issue, he said.

“It looks like it was a tough day for the executive branch,” observed Steve Bernstein, a partner at Fisher & Phillips LLP in Tampa, Fla.

What Did the Founders Mean by “Recess”?

U.S. Solicitor General Donald B. Verrilli Jr. argued on behalf of the NLRB, while Noel J. Francisco of the Washington office of Jones Day argued for Noel Canning. Republican members of the Senate, represented by Miguel A. Estrada of the Washington office of law firm Gibson, Dunn & Crutcher, were given time to express their support for the company’s position.

The constitutional provision at issue, found in Article II, which covers presidential powers, empowers the president to fill vacancies “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

As outlined in Article II, the normal procedure is for the president to nominate individuals to be “officers of the United States,” after which the Senate must give its approval, through “advice and consent,” in order for the nominees to accept the position.

According to Lyle Denniston, a journalist who has covered the Supreme Court for 55 years, the Founding Fathers adopted the exception because, at a time when travel was extremely difficult, there would be occasions when the Senate would not be able to assemble to consider an appointment to a vacant position. Thus, they added the exception to ensure that government agencies could continue to operate in the interim.

Presidential appointees named during a recess hold their jobs only temporarily. If the president does not send their names back to the Senate, using the normal process, they must surrender the position after serving for a specified period.

“The appointments clause was a compromise,” Babson explained. “The Founding Fathers did not want the president to have the authority to fill all positions.”

NLRB Authority to Decide Cases in Dispute

On Jan. 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held that the NLRB lacked a quorum to decide an unfair-labor-practice case against Noel Canning because two of the three members on the board panel were unconstitutionally appointed. The board filed a petition for Supreme Court review of the ruling, and the court granted the petition on June 24.

In New Process Steel LP v. NLRB, 130 S. Ct. 2635 (2010), the Supreme Court determined that the authority of the five-seat NLRB cannot be exercised by a panel with fewer than three members.

Democrat Craig Becker's recess appointment expired on Jan. 3, 2012, leaving the board with only two members: Democratic Chairman Mark Gaston Pearce and Republican Brian E. Hayes. On Jan. 4, Obama announced the recess appointments of Democrat Sharon Block and Republicans Terence F. Flynn and Richard F. Griffin.

The Senate had been holding pro forma sessions every three days for weeks before the president's action. The chamber’s own glossary defines “pro forma session” as follows: “From the Latin, meaning ‘as a matter of form,’ a pro forma session is a brief meeting of the Senate, often only a few minutes in duration.”

Noel’s Canning’s position is that Obama appointed Block, Flynn and Griffin when the Senate was in session, not in recess, and, therefore, exceeded his constitutional authority to make recess appointments.

The Justice Department released a memorandum opinion that the president had the constitutional authority to make the appointments, but Noel Canning filed a petition for D.C. Circuit review of a February 2012 unfair-labor-practice decision that stated the company violated the National Labor Relations Act when it refused to sign a collective bargaining agreement containing terms it had negotiated with International Brotherhood of Teamsters Local 760.

The board panel that decided the case included just one Senate-confirmed member (Hayes), along with recess appointees Block and Flynn. The company argued in the D.C. Circuit that the NLRB lacked the quorum needed to support its unfair-labor-practice findings and remedial order.

A three-judge panel of the D.C. Circuit found that the board order against Noel Canning would otherwise have been enforceable, but that the president's recess appointments were unconstitutional.

Three Questions Presented

The Supreme Court granted review on three questions:

1) Whether the president's recess-appointment power may be exercised during a recess that occurs within a session of the Senate or is limited to recesses that occur between Senate sessions.

2) Whether the president's recess-appointment power may be used to fill vacancies that exist during a recess or is limited to vacancies that first arose during that recess.

3) Whether the president's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

Justices Skeptical of Government’s Position

Even the pragmatists on the court seemed to agree that the language of the appointments clause was straightforward, Babson said.

Justice Stephen Breyer noted that modern Senate-White House battles over nominations were a political problem, not a constitutional one. Senators of both parties have used the Constitution’s recess-appointment provisions to their own advantage in their “political fights,” Breyer said, but added that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees.

Justice Elena Kagan, although expressing concern that the country would wake up “one fine morning” and “chuck” two centuries of history of frequent presidential use of recess appointments, nevertheless said that “it was the Senate’s job to decide” when it goes out on recess, thus giving it the ability to control when, or if, the president may make such appointments.

Chief Justice John G. Roberts Jr. commented that the Senate has “an absolute right to refuse” to approve any of the president’s nominees, even if the president thinks such a refusal is “intransigence.” 

If the court invalidates just the three appointments directly at issue, all actions taken by the board for which those appointees were necessary for a quorum would be invalidated, Babson said. That could amount to anywhere from 700 to 1,000 decisions. “I think there will be a lot of work that needs to be redone at the NLRB and this will be a challenge,” he said.

And the court could issue an even broader ruling, encompassing decisions made by recess appointees at other government agencies, Bernstein said. “The decision may even have broad ramifications for presidential power in general. You can see the justices struggling with much broader issues.”

Joanne Deschenaux, J.D., is SHRM’s senior legal editor. 

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