When is a presidential recess appointment less than an appointment? It would seem when Congress isn’t in recess. This Friday morning, January 25, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia unanimously invalidated President Obama’s three appointments – Sharon Block, Richard Griffin and Terence Flynn – to the National Labor Relations Board (NLRB) of January 4, 2012. The Obama administration is expected to appeal the case, known as Noel Canning v. NLRB, to the U.S. Supreme Court. As Flynn stepped down last summer and another member left in December, the normally five-member NLRB now has only one legitimate member, Mark Pearce. Things could stay chaotic for a long time. For if the Supreme Court affirms the ruling, such action could void scores of board rulings over the past year.
National Legal and Policy Center last January and again last December described in detail the nature of this complex situation. The National Labor Relations Board, which had been operating short-handed for several years, was faced with an expanding caseload when President Obama decided to fill three vacancies. The president saw not only an opportunity to bring the board up to full strength, but also an opportunity to appoint two union partisans. As longstanding political custom has had it, the NLRB operates with three members of one major political party and two members of the other. In the Obama administration, then, this meant a board with three Democrats and two Republicans. But the two Republicans, Terence Flynn and Brian Hayes, are gone. Flynn, a recess appointee, resigned amid an ethical cloud. And Hayes left when his term expired this past December 16.
President Obama sought to bypass the Senate approval process by making temporary recess appointments. Such appointments are good for one calendar year beyond the year in which they are made. Thus, Sharon Block and Richard Griffin, respectively, deputy assistant secretary for congressional affairs under Obama Labor Secretary Hilda Solis and general counsel for the International Union of Operating Engineers, are serving through 2013 in lieu of Senate approval. The problem, said critics of the move, is that the date of the appointments – January 4, 2012 – wasn’t during a Christmas recess. Hence, the appointments were not of a “recess” variety. Lawmakers, they said, were in “pro forma” sessions, which is of a different status. Defenders of the Obama appointments responded that this was indeed a recess because pro forma sessions in this case consisted of nothing more than a senator every third day pounding a gavel to convene and pounding it a few seconds later to adjourn.
The constitutional definition of a “recess” soon would be put to the test. A Yakima, Wash.-based beverage canning and bottling company, Noel Canning, sued the NLRB in federal appeals court in March 2012 following a board ruling the previous month against the company in favor of a Teamsters local. Not long after, Senate Minority Leader Mitch McConnell and 41 other Republican senators, along with the U.S. Chamber of Commerce and several other pro-business organizations, filed amicus briefs in favor of the plaintiff. The company argued that the NLRB decision wasn’t valid because three of its members weren’t legitimate appointments. This case, it should be noted, is separate from that of Richard Cordray, head of the new Consumer Financial Protection Bureau; he, too, had been named as a recess appointment on January 4, 2012. Yesterday, on January 24, President Obama renominated him, thus all but assuring a fight with Senate Republicans who oppose the agency’s sweeping powers.
The federal court heard arguments in Chicago on November 30 and again in Washington, D.C. on December 5. Justice Department lawyer Beth Brinkmann argued that the recess was real. The Senate, she said, had no intention of acting as a legislative body during the pro forma sessions. It took no votes, held no hearings and debated no bills. The Senators’ lawyer, Miguel Estrada, countered that President Obama abused his constitutional authority by appointing officials who required formal confirmation. By defining “recess” in an extremely broad manner, the administration rendered the term almost meaningless. Moreover, he noted, Congress did more than simply pro forma work. On December 23, 2011, the House and Senate unanimously passed a two-month extension of payroll tax deductions, unemployment benefits, and health care provider reimbursements, legislation which President Obama quickly signed. Granted, the outcome was not in doubt, but the votes constituted substantive work all the same.
Thus, three judges on the D.C. appeals court – Chief Judge David Sentelle, Karen Henderson and Thomas Griffith – held the balance of fate. And only hours ago they unanimously declared that the Senate was not in recess during those “recess appointments”; hence, the appointments were invalid. The Obama administration reportedly is ready to appeal the case to the Supreme Court. Whatever action (or inaction) the Court takes, the result will be continued inertia at the NLRB. If the Court lets stand or affirms the ruling, it effectively will have tossed Block and the Griffin off the board and required their re-nomination or the nomination of two others. Moreover, either course would leave the board with only one member, Chairman Mark Gaston Pearce. And were that not enough, it would invalidate more than 200 rulings issued by the current lineup for want of a minimum quorum, which the Supreme Court in June 2010 in New Process Steel defined as three members. On the other hand, if the Supreme Court overturns the circuit court and approves the presence of Black and Griffin, it will have effectively given President Obama (and his successors) carte blanche to usurp a major function of the legislative branch of government, and possibly more in the future. In the case of Griffin, now facing federal racketeering charges, this would send an especially bad signal about the board.
What we have, then, is a Hobson’s choice. No matter what happens, the result is going to be painful. Yet on balance, the former path would appear to be preferable, as it would avert a potentially dangerous expansion of executive branch authority. Had President Obama been more patient and simply waited until the Senate was back in session to make his appointments, this crisis wouldn’t have materialized. But that would have risked Senate rejection. And Obama – one of whose signature lines is “Let’s get it done!” – isn’t a president who likes delays or rejections.