Administration brings GOP attacks on NLRB to Supreme Court

WASHINGTON – The National Labor Relations Board (NLRB) and the Obama administration Justice Department formally asked the U.S. Supreme Court to settle the issue of whether the courts can legally strip federal agencies – notably the board – of their power to do anything, by ruling that interim “recess” appointments to run the agencies are almost always illegal.

In a brief filed with the justices, the Justice Department, acting for the NLRB, says Democratic President Barack Obama was within his constitutional rights to fill board member vacancies during a Senate recess, even if that recess is between days the Senate meets in the same session of Congress.

And the Justice Department also wants the court to decide whether the president can use his recess appointment power to fill ongoing vacancies in the executive branch and in regulatory agencies, such as the NLRB, or whether it’s limited only to vacancies that start during recesses.

Left unsaid in the 138-page brief, filed April 25, is the real reason the NLRB seats, and other top posts, are vacant: Filibusters by the Senate GOP minority, trying to prevent the administration from doing its job, and to prevent the NLRB from functioning.

The case is important not just to workers and their allies, because the board governs labor-management relations. It’s also important to defining how much power Obama, or any president, has to fill vacancies, to ensure the government runs.

All that was called into question in January by a three-judge panel of the U.S. Circuit Court of Appeals for D.C., often called the nation’s second-highest court because it handles the vast majority of regulatory agency disputes, including labor law disputes.

And it was a labor law dispute, involving Noel Canning Corp., of Washington state, that led to the present mess.

Noel Canning refused to implement a contract it reached with Teamsters Local 760, and the board ruled that its refusal broke labor law. But when the firm appealed the ruling to the D.C. Circuit, it introduced a new argument to that 3-judge panel: That the NLRB itself couldn’t rule on the case, because the board’s makeup is illegal.

The firm argued that two “recess appointees” who signed the decision were illegally named. That left the board without a quorum to rule against the firm – or in anything else since the two recess appointees took their seats in January 2012.

The judges, all nominated by Republican presidents, agreed with the company.

Other circuit courts have upheld the president’s recess appointments powers, which have been exercised, in much the same way, starting with George Washington, the Justice Department and the NLRB told the justices. Changing the interpretation now would create a large mess, and not just in labor law, the brief tells the High Court.

“The Court of Appeals’ decision would deny the president authority to fill vacant offices during intra-session recesses — which account for much of the time the modern Senate is not in session — and would further preclude him from filling many vacancies even during inter-session recesses,” their brief adds.

“That decision repudiates understandings of the recess appointments clause that

have been maintained and relied on by the executive for most of the nation’s history. The limitations imposed by the Court of Appeals would render many of the recess appointments since the Second World War unconstitutional.

“The decision also threatens a significant disruption of the federal government’s operations — including, most immediately, those of the National Labor Relations Board. The (court’s) decision potentially calls into question every final decision of the board since Jan. 4, 2012. And, because many of the board’s members have been recess-appointed during the past decade, it could also place earlier orders in jeopardy.

“The National Labor Relations Act places no time limit on petitions for review and allows such petitions to be brought in either a regional circuit (court) or the D.C. Circuit,” the board and the Justice Department pointed out. “Thus, the potential effects of the decision are limited by neither time nor geography.

“Moreover, those effects can also be expected to extend to a wider range of federal agencies and offices…If the decision is allowed to stand, almost any federal officer who received a recess appointment during an intra-session recess, or who was appointed to fill a vacancy that did not first arise during the recess in which the appointment was made, could have his actions challenged on the ground that his appointment was unconstitutional.”

The Justice Department and the NLRB asked the justices to take the Noel Canning case “to remove the resulting constitutional cloud over the acts of past and present recess appointees, and to restore the president’s capacity to fill vacant offices temporarily when the Senate is unavailable to give its advice and consent” to presidential nominations.

Photo: PW/Flickr