It’s starting to look as though the National Labor Relations Board may have to redo more than a year of work — more than 600 decisions it made in 2012.
Earlier this week, the U.S. Supreme Court heard oral arguments in NLRB v. Noel Canning, which challenges President Obama’s right to have made “recess appointments” to the Labor Board when the Senate was holding “pro forma” sessions in early 2012.
And there was some indication that the high court justices were leaning toward ruling against the administration.
As explained in a Washington Post story, the Senate was holding pro forma sessions every three days precisely to thwart the president’s ability to exercise his Constitutional power to make such appointments when the Senate’s not in session:
“It really is the Senate’s job to determine whether they’re in recess or whether they’re not,” said Justice Elena Kagan, who was nominated by Obama and who directed her remarks at Donald B. Verrilli Jr., her successor as Obama’s solicitor general.
But Kagan also appeared to be advocating the narrowest way to resolve what Justice Stephen G. Breyer called “political fights between Congress and the president.”
She and other members of the court seemed to agree with Senate Republicans and others who challenged Obama’s action that the text of the recess clause — that the president “shall have power to fill up all vacancies that may happen during the recess of the Senate” — might favor the narrow reading an appeals court gave it.
But they also acknowledged that the power has been used thousands of times by nearly every president since George Washington to make appointments to the highest levels of the military and executive and judicial branches.
At the hearing, justices on both end of the conservative/liberal spectrum seemed to question the propriety of the appointments. That’s not necessarily a guarantee of how they’ll rule, but it does bring up the possibility that a whole year’s worth of NLRB decisions would be rendered invalid.
Full board finally forms
The court’s ruling would apply only to actions taken by the board on which Obama’s recess appointees — DOL official Sharon Block, union attorney Richard Griffin and Republican Terence Flynn — served.
Last July, after Senate Republicans had been dragging their feet on confirming President Obama’s other NLRB nominees, a political deal was struck: The Dems wouldn’t change the rules on filibusters if the GOP members would confirm the NLRB nominees.
The GOP got one other concession: The administration agreed to replace Griffin and Block. Gaining official Senate approval were Mark Pearce, Nancy Schiffer, Harry Johnson, III, Kent Hirozawa and Philip Miscimarra. Pearce, Hirozawa and Schiffer are Democrats; Johnson and Miscimarra are Republicans.
None of the decisions made by the current board would be affected by the Supreme Court’s final ruling.
How we got here
Last January, a federal appeals court in Washington, DC ruled that President Obama’s recess NLRB appointments violated the Constitution.
The Obama administration claimed the president used his recess appointment powers to name the two Democrats and one Republican during the holidays, when the Senate was supposedly not in session.
But the DC judge ruled that the Senate was in “pro-forma” session — so Obama’s NLRB appointments were unconstitutional.
The ruling came out of a case filed by Noel Canning, which was challenging an NLRB ruling that the company violated labor law during negotiations for a new collective bargaining agreement with union employees.
The Supreme Court agreed to hear the case last summer; a decision is expected in summer 2014.