The Obama administration asked the Supreme Court today to reverse a lower court decision that held that the President violated the Constitution when he made recess appointments last year to the National Labor Relations Board, an independent agency that enforces employee and employer rights under the National Labor Relations Act. The NLRB consists of five members appointed by the President.
The Recess Appointments Clause of the Constitution permits the President to make temporary appointments , without Senate approval, during times when the Senate is not in session.
But in January, the U.S. Court of Appeals for the District of Columbia held that the President’s appointment of three members to the NLRB was “an unconstitutional act” because it took place when the Senate was in an “intrasession” recess (a recess within a session of congress), rather than an “intersession” recess (occurring between sessions of Congress).
The court held that the President could only fill those vacancies that arose during the intercession recess in which the appointment was made.
The case addresses the balance of power between the Senate and the executive when it comes to recess appointments.
It was in January of 2012 that the President invoked his recess appointment power and appointed three members of the NLRB as well as Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB). The case at hand deals directly with the NLRB appointments but calls into question Cordray’s appointment as well.
On the day of the appointments, White House spokesperson Dan Pfeiffer wrote in the White House blog that Republican Senators had “insisted on using a gimmick called ‘pro forma’ sessions, which are sessions during which no Senate business is conducted and instead on or two Senators simply gavel in and out of session in a matter of seconds. ”
Pfeiffer wrote, “gimmicks do not override the President’s constitutional authority to make appointments to keep the government running.”
The recess appointments were later challenged by Noel Canning– a Washington based canning and bottling employer. The lower court ruled in Noel Canning’s favor.
In today’s briefs challenging that ruling, Solicitor General Donald B. Verrilli Jr. argues that the lower court decision would “deem invalid hundreds of recess appointments made by the President since early in the Nation’s history. ”
He says it would call into question not only every order made by the National Labor Relations Board in the last two years, but could also threaten “past and future” decisions of other federal agencies.
“The constitutional text provides that the President may fill vacancies during the ‘Recess of the Senate’, ” Verrilli argues. “That text does not differentiate expressly between inter- and intrasession recesses. Verrilli says that the Founding generation understood that the term “recess” included both inter and intra-session recesses.
The makeup of the NLRB board members has long generated conflict between labor unions and small business groups who say that the NLRB has gone too far in trying to regulate non union employers.
Today, the Karen Hand, Executive Director of the Small Business Legal Center issued a statement opposing the Obama’s administration position. “Small–business owners throughout the country have suffered under the unabashedly pro-union decisions handed down by the NLRB. They deserve to be protected from unconstitutional acts that exacerbate the NLRB’s devolution from a neutral arbiter between labor and employers to a pro-union government agency. NFIB urges the Supreme Court to uphold the DC Circuit’s ruling.” If the Court agrees to take up the case, it will hear it sometime next term.
Read more on this story from Terry Moran at ABC News Politics.