Jottings By An Employer's Lawyer

Friday, January 25, 2013

What Now for the NLRB? Recess Appointments Invalid

Although undoubtedly not the last word, today's opinion by the D. C. Circuit Court of Appeals limiting the President to make "recess appointments" only between sessions of Congress, is a major break in precedent, not so much with prior court decisions but with prior practice by Presidents of both parties. Obama Labor Board Recess Appointments Are Unconstitutional, Federal Court Rules.

The political science ramifications for the balance of power between the Senate and the President, and how government operates are enormous, and will no doubt now get a lot more attention.  It makes the agreement apparently reached by the Senate Majority and Minority leaders on filibuster even more important.

Since the actual case that makes the decision involves the NLRB, and since the NLRB unlike some agencies has no provision to provide for members once terms expire (such as the current members serving until a replacement is appointed and confirmed), the logical effect of today's opinion is to shut down the Board.

At a minimum, any action that it takes is subject to a challenge. Given that the court deciding it is the jurisdiction where the Board actually sits, seems to me to pose even more problems, that might not be true if the decision were made in another jurisdiction.

While folks may disagree with the results of the decision, and already news media are pointing out that the three judges who sat on the panel are Republican appointees, they should read the opinion first.  Although the concurring judge makes a good point that having decided the initial question, that the recess appointment is limited to the inter-session Recess, at which there are two or three at most in every Congress, they should not have reached the second question, whether the President's argument  that the Senate's current procedural device for avoiding a recess was a sham, it is hard to say as a general rule that this was done by an over reaching court.

What Novell Canning v. NLRB (D.C. Cir. 1/25/13) ultimately does is serve as a good reminder of the fact that the Constitution is a governing document. As Chief Judge Sentelle noted in his majority opinion:
In any event, if some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the
Constitution commands. ...
The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.
As I say, this is not the last word, but it is a very, very significant decision far beyond just the world of labor law. However, for the beleagured NLRB, it could be very well the death knell of the agency, at least for the forseeable future.

As always with developments of this type, the thought that comes to mind is the law of unintended consequences.  What makes it such a powerful rule is that by definition, that means no one knows what comes next.

Hang on.

Update: Not too surpringly, the immediate reaction from the Board is that they disagree and will continue to issue decisions. See Statement by Chairman Pearce on recess appointment ruling.

One correction: the concurrence did not disagree with the conclusion that the President does not get to decide when the Senate is in 'the Recess.' The concurrence disagreed that the majority should not have reached the other major issue, that the Recess Appointment clause only applies to positions that become vacant ("that may happen") during 'the Recess.' That could be a much more stringent limitation, because it would narrow substantially the openings for which recess appointments were possible.
One fact that can't be ignored is that Obama, through this attempt on defining when the Senate is in recess, sought to invade the prerogative of the Legislative Branch. The courts must recognize that if he gets away with that, his next move will be into the Judiciary's turf.
Obama has thrown down the gauntlet by his reappointing Block and Griffith last Wednesday.
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