The U.S. Supreme Court Will Decide If President Obama’s Recess Appointments To NLRB Are Constitutional

Nicholas Fortuna, October 18, 2013.

This term, the U.S. Supreme Court will rule on the scope of the President’s power to make recess appointments under the Constitution. Article II of the Constitution provides that the president shall have power to fill vacancies subject to Senate confirmation during a recess of the Senate to ensure smooth operation of the government. The D.C. Circuit Court of Appeals ruled in National Labor Relations Board (NLRB) v. Noel Canning that President Obama’s three appointments to the NLRB during a recess by the Senate were unconstitutional. The effect was to void the NLRB’s Noel Canning decision and put at risk all the rulings made by the Board since the recess appointments were made.

Congress created the NLRB in 1935 to promote labor peace by encouraging companies and unions to bargain over their workers’ pay and other benefits. The Board decides thousands of cases like the one at issue here. Labor unions view the Board as a key ally in a time of diminishing union membership and clout. Employers see the Board as too pro-union. The NLRB has five members that decide matters relating to unions and employers.

The Supreme Court ruled three years ago that the Board shall not carry out its duties if its membership falls below three. Typically, when a vacancy occurs on the Board, the President chooses someone to fill it and the Senate decides whether to approve that nominee. Because of partisan gridlock, the Senate refused to vote on any of President Obama’s nominees to the Board. As a result, the membership fell below three and the Board did not have a quorum to operate. In turn, President Obama made three recess appointments in January of 2012.

The D.C. Circuit’s decision severely limits the President’s appointment power. It ruled first that the President can only make a recess appointment when the Senate is out of town during the interval between its annual sessions; and second, that the only vacancies the President can fill by such appointments are those that have opened up during such annual recess.

The current battle is a rehash of fights during the George W. Bush administration, just with party affiliations flipped. In 2004, President George W. Bush was fighting a challenge by Senate Democrat, Ted Kennedy, of his right to make intrasession appointments. At that time, the D.C. Circuit ruled in favor of the President and upheld the disputed appointments. In 2012, the Solicitor General in the Obama White House is defending intrasession recess appointments from attacks by the right. This time D.C. Circuit ruled against the President.

The Supreme Court is expected to make a decision by June of 2014.