High court to weigh fate of recess appointments

The Supreme Court on Monday agreed to hear a challenge of President Obama’s recess appointments to the National Labor Relations Board (NLRB), setting the stage for a major ruling on executive power.

The high court will look at a federal appeals court ruling in January that struck down Obama’s recess appointments to the labor board. If upheld, that ruling could dramatically curtail the use of recess appointments by presidents.

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The U.S. Court of Appeals for the D.C. Circuit said Obama ignored the Senate’s constitutional “advise and consent” role in appointing NLRB members Sharon Block, Terence Flynn and Richard Griffin when the upper chamber was holding a pro forma session. 

White House press secretary Jay Carney said Monday that the White House was “confident that the president’s authority to make recess appointments will be upheld by the courts.” He said the president had simply asserted the same right to recess appointments that was exercised by his predecessors.

Senate Republicans, who joined business groups in challenging the appointments, said Obama’s move was unconstitutional. 

Senate Minority Leader Mitch McConnell (R-Ky.) welcomed the Supreme Court’s scrutiny of what he called Obama’s “unprecedented power grab.”

“A federal appeals court earlier this year reaffirmed what Republicans and job creators around the country have been saying: the president’s attempt to circumvent the Senate with a supposed ‘recess appointment’ to the NLRB was unconstitutional. It will now be up to the Supreme Court to decide whether the president violated the Constitution,” McConnell said in a statement.

The five-member NLRB currently has two vacancies. Nullifying the appointments would deprive it of two of the sitting board members, leaving the body unable to form a quorum and casting all of its recent action into doubt.

In a separate decision in May, the 3rd Circuit Court of Appeals said in a 2-1 decision that Obama unconstitutionally appointed another former member of the board, Craig Becker. The court said that recess appointments could only come during the breaks the Senate takes between sessions, at the end of each year.

Both Becker and Flynn are no longer with the board.

Obama recess-appointed several other current and former officials — including leaders of the Consumer Financial Protection Bureau and the Medicare agency — during pro forma sessions of the Senate. The legitimacy of their appointments could also be on the line in the high court case.

Obama has defended his appointments, arguing that the Senate was in recess for all practical purposes. 

In its appeal to the Supreme Court, the Obama administration wrote that the “Senate’s explicit cessation of business” during a three-week pro forma session in 2012 allowed the president to determine it was in recess. 

The D.C. court, however, ruled that a president can only appoint a nominee without the approval of the Senate while the legislature is in recess between sessions. 

During Obama’s administration, the NLRB has become a focal point of partisan bickering as business and labor feud over the agency.

Business groups have targeted the labor board, arguing the NLRB has favored unions in its rulings and regulations. The Chamber of Commerce argued the case on behalf of its member, The Noel Canning Corp., at the D.C. Circuit and plans to help represent the company at the high court.

“The Supreme Court’s decision to review this case is welcome news,” said Tom Donohue, the Chamber’s president and CEO, in a statement. “We warned last year that by appointing these members to the NLRB in such a controversial fashion, a cloud of uncertainty covered the agency and its work.”

Unions are concerned about the labor board’s future. By August this year, the NLRB will only have two members — not enough to form a quorum to take official actions — unless the Senate confirms Obama’s labor board nominees.

“The D.C. Circuit’s radical decision on the NLRB recess appointments has wreaked havoc on the lives of working people seeking to exercise their rights to join together to improve their work lives. We hope the Supreme Court will reverse the D.C. Circuit’s radical ruling. But workers can’t wait for the Supreme Court, we need the Senate to confirm the bipartisan package of NLRB nominees now,” said Josh Goldstein, an AFL-CIO spokesman.

Republicans in the House have passed a bill that would halt all NLRB activity requiring a quorum until the legal status of the board is resolved. That legislation has also been introduced in the Senate.

In a statement after the Supreme Court announced it would review the NLRB case, Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee; and Rep. Phil Roe (R-Tenn.), head of that panel’s subcommittee on Health, Employment, Labor and Pensions, urged the Senate to move on legislation.

“As we wait for the Supreme Court to do its work, it’s time for the Senate to do its job,” they said in a statement. “We urge the Senate to pass legislation that will prevent the board from inflicting further harm on America’s workplaces.”

The case at the Supreme Court is National Labor Relations Board v. Noel Canning.

Kevin Bogardus contributed.

— Published at 9:58 a.m. and has been updated at 12:54 p.m. and at 6:50 p.m.