Beltway Confidential

Supreme Court takes up case on Obama’s recess appointments to NLRB

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The nine justices announced this morning they would take up National Labor Relations Board v. Noel Canning, the case that declared President Obama’s recess appointments unconstitutional. This will be a closely watched case. In addition to resolving whether the NLRB has a valid quorum, it could set  a major precedent for the limits of executive branch power.

In the case, the DC Court of Appeals ruled that President Obama overreached in his use of the chief executive’s recess appointment power to install three people — Richard Griffin, Sharon Block and Terrence Flynn — on the NLRB. Obama made the appointments despite the fact that the Senate was not officially in recess. In essence, the White House asserted that it had the right to determine when the Senate was in session, not the Senate itself.

Obama did this to circumvent a likely Republican-led filibuster of the nominees. There never was a filibuster though. Obama made the recess appointments in January 2012, only about three weeks after the nominations we announced. The Senate never even had time to hold hearings on the nominees.

In January of this year, the appeals court rejected the administration’s position, finding that the Constitution only grants the president the power to make appointments between sessions of the Senate, not when the Senate takes breaks during its regular sessions. The decision effectively invalidated every ruling the NLRB had made since Block and Griffin’s appointments because without them the board lacked a valid quorum.(By this point, Flynn had resigned from the board.)

The NLRB attempted to ignore the ruling and conduct business as usual, but this proved impossible as business groups used Noel Canning to challenge its decisions. It eventually asked the Supreme Court to resolve the impass. Last month, another Appeals Court ruled that Craig Becker, an earlier NLRB who was given a similar recess appointment by Obama, was also unconstitutionally installed on the board.

For more on the NLRB situation, see my column from last month.

UPDATE: AFL-CIO spokesman Josh Goldstein issued the following statement:

The DC Circuit’s radical decision on the NLRB recess appointments has wreaked havoc on the lives of working people seeking to exercise their rights to join together to improve their work lives. We hope the Supreme Court will reverse the DC Circuit’s radical ruling. But workers can’t wait for the Supreme Court – we need the senate to confirm the bipartisan package of NLRB nominees now.

UPDATE: House Education and the Workforce Committee Chairman John Kline, R-Minn., and Rep. Phil Roe,R-Tenn., chairman of the labor subcommittee, issued the following joint statement:

As we’ve said from the beginning, the Supreme Court ultimately must decide whether President Obama’s unprecedented recess appointment scheme is constitutional. While we welcome the court’s review of this matter, a final outcome is still months away. Meanwhile, the board continues to issue new decisions and exacerbate the legal uncertainty threatening workers and employers across the country. As we wait for the Supreme Court to do its work, it’s time for the Senate to do its job. The House has acted. We urge the Senate to pass legislation that will prevent the board from inflicting further harm on America’s workplaces.


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Sean Higgins

Senior Writer
The Washington Examiner