The National Labor Relations Board has been a model of instability these last half-dozen years. And the drama, though temporarily resolved last July, won’t likely end soon. Last Thursday, June 26, the Supreme Court unanimously ruled in Noel Canning v. NLRB that President Obama exceeded his authority in making three “recess appointments” to the NLRB on January 4, 2012 during a Senate break which, in the eyes of the Court, did not qualify as a recess. “The Senate is in session when it says it is,” wrote Justice Stephen Breyer (in photo). Yet the ruling was not a full defeat for Obama. By 5-4, the four liberals on the Court, joined by Justice Anthony Kennedy, also ruled against the near-elimination of presidential recess authority and thus undercut a circuit court ruling in January 2013. The invalidation of the appointments likely will trigger full reviews by NLRB of a number of its more than 400 recent decisions, though not nearly all of them.
Union Corruption Update has covered this issue from the start. Back in late 2011 the normally five-member National Labor Relations Board, continuously operating short-handed for nearly four years, was facing a deluge of cases. Even worse, by now it was down to two members, less than a necessary quorum; the Supreme Court had decided in June 2010 in New Process Steel that the NLRB had to have at least three members to issue rulings. The board then consisted of Chairman Mark Pearce, a Democrat, and Brian Hayes, a Republican. President Obama decided to fill the three vacancies. There was a political as well as a logistical advantage here. By longstanding custom, three board members must belong to the same party as the one in the White House; the other two must belong to the party of opposition. By definition, a full NLRB under Obama translated into three Democrats and two Republicans; i.e., a pro-union majority. And if organized labor, which helped elect Obama in 2008, wanted anything for the board, it was a pro-union majority.
A temporary presidential “recess” appointment is good for at most one calendar year beyond the year in which it is made. President Obama, wishing to avoid a drawn-out Senate approval process and a possible filibuster, appointed Sharon Block (Democrat), Richard Griffin (Democrat) and Terence Flynn (Republican) to the board on January 4, 2012. In addition, though unrelated to the NLRB, Obama also appointed Richard Cordray to head the new Consumer Financial Protection Bureau. The Senate apparently was in recess during this 20-day period. But the matter would go unresolved. First, the two Republicans, Flynn and Hayes, wouldn’t last long. Flynn, a recess appointee, would resign in the summer of 2012 amid ethical allegations. And Hayes left when his term expired on December 16 of that year. Second, the Senate, formally speaking, likely was not in a state of recess; hence, these were not recess appointments. Critics of the appointments said that senators during those roughly three weeks held “pro forma” sessions, which are not the same thing as recess periods. Supporters of the appointments countered that this was a recess because those pro forma sessions consisted of nothing more than a senator pounding the gavel every third day to convene and then pounding it several seconds later to adjourn.
It was left to the courts to determine whether or not there was a recess, and more broadly, whether a president has the authority to make appointments during such intervals. The opportunity would present itself soon enough. In March 2012, a Yakima, Wash.-based Pepsi-Cola bottler, Noel Canning, sued the NLRB in the District of Columbia federal circuit court of appeals after the board had ruled the previous month against the firm and in favor of a Teamsters local union. Not long after, Senate Minority Leader Mitch McConnell, R-Ky., along with 41 other Republican senators, amplified by the U.S. Chamber of Commerce and other business organizations, filed amicus briefs in support of the plaintiff. The company argued the ruling wasn’t valid because three of the board members weren’t legitimate appointees.
The court heard separate arguments in Chicago and in Washington, D.C. late in 2012. The Justice Department’s lawyer, Beth Brinkmann, argued that the recess was genuine because the Senate had no intention of acting as a legislative body during the pro forma sessions. This was a Christmas recess all but in name. It took no votes, held no hearings and debated no bills. The senators’ lawyer, Miguel Estrada, a partner at Gibson, Dunn & Crutcher, disagreed. He argued that President Obama abused his authority by appointing officials who required Senate confirmation. By defining “recess” in an overly broad manner, he had rendered the term almost meaningless. Moreover, he noted, Congress indeed did conduct formal business during the pro forma sessions. 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 voting constituted substantive work all the same.
It’s significant that Republican senators chose Estrada to argue their case. During the George W. Bush administration, Senate Democrats for more than two years used every delay tactic in the book to block his nomination to the U.S. Court of Appeals for the District of Columbia. Eventually, he withdrew his name from consideration in September 2003. Estrada’s presence served as a reminder that obstruction is a game that any political party can play.
Three members of the District of Columbia federal appeals court – Chief Judge David Sentelle, Karen Henderson and Thomas Griffith – held the balance of fate. And on January 25, 2013 they ruled unanimously that the Senate was not in recess during the January 4, 2012 “recess appointments.” Thus, the appointments were unconstitutional. The Obama administration quickly signaled its intent to file an appeal with the Supreme Court. It made good on its promise that April.
Meanwhile, there was the business of bringing the NLRB up to full strength. In February, Obama re-nominated Block and Griffin. Two months later, he submitted to the Senate the names of Mark Pearce (Democrat), Harry Johnson III (Republican) and Philip Miscimarra (Republican). The Senate Labor Committee sent the names of all five nominees to the full Senate to be voted on as a group, a sure sign that committee leaders feared a successful GOP filibuster against Block and the ethically-challenged Griffin. Senate Majority Leader Harry Reid, in response, sought to lower the bar for breaking a filibuster by requiring only a simple rather than three-fifths majority. Senate Republicans, led by Minority Leader McConnell, vowed to fight the rule change. In the middle of July, following negotiations between the two, Reid called off his proposal, yielding to McConnell’s demand for replacement nominees for Block and Griffin. Though an apparent Republican victory, the Democrats actually wound up with the upper hand thanks to timely help from the White House. For during that very time, President Obama was submitting the names of Nancy Schiffer and Kent Hirozawa as substitutes. Both were strongly pro-union Democrats vetted by the AFL-CIO. The Senate Labor Committee and then the full Senate approved the pair. What’s more, the Republicans agreed not to challenge the nomination of Richard Griffin as NLRB general counsel, a position arguably as important as board member.
With a 3-2 Democratic Party edge, organized labor now had its built-in NLRB majority. The issue now was a waiting game for the Supreme Court ruling in Noel Canning. And last Thursday, the decision came down: The January 2012 recess appointments were invalid. By a unanimous vote, the Supreme Court concluded that Obama had overstepped his constitutional authority. At the same time the Court, by 5-4, voted against eliminating the general presidential power to make recess appointments. The court’s four liberals, joined by Justice Kennedy, ruled that the two centuries-old practice of such appointments during recess periods – the cessation of business for at least 10 days – is a valid exercise of authority.
Justice Stephen Breyer, who wrote the majority opinion for the unanimous decision, justified the ruling as clarifying the constitutional limit on recess appointment power. Until Obama’s January 2012 appointments, he argued, no U.S. president had used this power during a Senate break shorter than 10 days. Thus, an appointment longer than three days but shorter than 10 days “is presumptively too short to fall within the clause.” He wrote: “The Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.”
In its second opinion, which overturned the appeals court ruling of January 2013, the Supreme Court determined that presidential recess appointment power, as a general principle, is legitimate. Article II, Section 2 of the Constitution states: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire during the Recess itself.” The four liberals, plus Justice Kennedy, effectively endorsed this clause. The four conservatives on the bench, by contrast, took the view that the clause has become a tool for an alarming growth in executive branch power. Justice Antonin Scalia, in his dissenting opinion, called the very power of recess appointments an “anachronism.” He noted: “The Court’s decision transforms the recess appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents against future Senates.”
Conservatives are satisfied with the main ruling. Senate Minority Leader McConnell termed it “a clear rebuke of the administration’s behavior.” His lawyer, Miguel Estrada, said the Court “reaffirmed the Senate’s power to prescribe its own rules.” Noel Francisco, the Jones Day attorney who represented the plaintiff, stated the ruling “vindicates the constitutional rights of Noel Canning Co. and ensures that the recess appointment power is exercised in accordance with constitutional limits.” The administration understandably is taking a much different view. Obama Press Secretary Josh Earnest characterized the White House as “deeply disappointed.” Yet he added, “We are…pleased that the court recognized the president’s executive authority – as exercised by presidents going all the way back to George Washington.” AFL-CIO President Richard Trumka, more pungently, said that Obama “did the right thing” in his appointments, and moreover, was forced into this choice due to “obstructionism by Republican senators.”
So where does this put the National Labor Relations Board? The NLRB handed down fully 436 decisions during January 31, 2012-July 16, 2013. Will members now have to go back to the beginning and review every last one? It’s not likely. First, the three members did not necessarily provide the margin of victory in these cases, especially with the resignation of Flynn during that time. Second, the fact that a case could be reopened doesn’t automatically mean that it will. The U.S. Supreme Court’s New Process Steel decision of four years ago, for example, vacated about 1,000 rulings for want of a quorum. Yet the NLRB wound up reopening only around 100 of those cases. Third, the NLRB as much as anyone else knows that a full review of every case would be a ticket to paralysis. It’s not just the backlog, but also the subsequent cases. Gregory King, spokesman for the board, notes that about 100 active circuit court cases had been placed on hold until the Supreme Court resolved the appointments issue. On a practical level, the board most likely will review only those cases directly affected by Noel Canning. In the remainder of cases, the board, with a 3-2 Democratic majority, will vote quickly to reaffirm. Justice Department and NLRB officials each have issued statements indicating they are assessing the impact of the Supreme Court decision. The board, said Chairman Pearce, is committed to resolving any cases affected by the ruling as “expeditiously as possible.”
Looking at the larger context, this is an election year. If Senate Republicans begin 2015 with a majority – something they haven’t enjoyed since the end of 2006 – they will have an enhanced ability to block the confirmation of presidential appointees. This may strike many as obstructionist. But looking at the issue through another lens, it was President Obama’s underlying radicalism that brought this situation about. While these and other recess appointments were responses to GOP filibusters, those filibusters in turn represented an eleventh-hour effort to derail appointees whose ideological partisanship well exceeded their fealty to the rule of law. Were the administration not so bent on achieving social equality at any cost, the filibusters likely would not have materialized and neither would have the recess appointments in dispute. The Supreme Court made the right call. But to avoid future such impasses, the Obama administration must cease undermining rule of law in the service of social equality. Unfortunately, that’s a lot easier said than done with this president.