The U.S. Supreme Court dealt a setback to President Obama today when it ruled that he had violated the Constitution when he appointed officials to the National Labor Relations Board while the Senate was in a recess period, meeting on a “pro forma” basis every three days. The court ruled that a 72-hour period is not long enough for a “recess appointment” — however, a recess of 10 or more days is sufficient for such appointments, it said.
Obama made his three recess appointments to the NLRB in 2012 after Senate Republicans had repeatedly blocked his nominees while the Senate was in session (and preventing the NLRB from achieving a quorum in the process). Bottling company Noel Canning challenged the validity of those appointments when it appealed an NLRB ruling that found the company had engaged in an unfair labor practice by refusing to enter into a collective-bargaining agreement. Noel Canning’s lawyers argued that the ruling was invalid because the board members had not been properly appointed. A federal appeals court sided with the company. (My colleague Kristen Frasch has been following this controversy closely.)
What will the Supreme Court’s decision mean for employers? The NLRB will now most likely have to review hundreds of rulings made by the previous board that have since been invalidated by Noel Canning. Many of those decisions were considered excessively pro-employee and anti-employer. However, things could get worse for companies in the wake of today’s ruling, write BakerHostetler employment attorneys Mike Asensio and Jeremiah Hart, who note that today’s properly constituted NRLB has shown that it will follow the labor policy of previous Boards and will most likely rubber-stamp many of the previous decisions invalidated by Noel Canning:
It is not a certainty that the NLRB will simply rubber stamp the decisions invalidated by Noel Canning, however. Noel Canning gives the current NLRB an opportunity to further push its employee- and labor-friendly agenda. In the wake of Noel Canning, the Board will now have to reissue hundreds of decisions and could, if it desired, make those decisions more protective of employee rights. Typically, the Board would have to wait years for these issues to work their way through the litigation process. The Board now has the opportunity to significantly contribute to the employee-friendly labor law agenda of the Boards of recent past in a very short amount of time.”
In other words, if you thought things were tough for employers at the NLRB before, it’s possible you ain’t seen nothin’ yet. And, while today’s ruling was clearly a setback for Obama, things could’ve gone much worse for him had the four most conservative Justices had their way, writes Venable LLP’s John Cooney, a former assistant to the Solicitor General and deputy general counsel at the Office of Management & Budget:
In reality, there was a sharp disagreement division between the 5 Justices who signed Justice [Stephen J.] Breyer’s opinion, including Justice Kennedy, and 4 Justices who would have greatly limited the President’s Recess Appointment power … These 5 Justices held that the President can make recess appointments during any recess of the Senate of sufficient length. … The four conservative Justices who did not join Justice Breyer’s decision would have substantially curtailed the President’s recess appointment power, in a manner that would have deprived this power of much of its historical significance.”
Obama made his recess appointments after having been stymied by the opposition party in the Senate. However, as Justice Breyer wrote in the majority opinion: “The recess appointments clause is not designed to overcome serious institutional friction. Friction between the branches is an inevitable consequence of our constitutional structure.”