National Labor Relations Board Vs Noel Canning, Supreme Court Showdown
Saturday 4, January 2014, 11:00 A.M. EST
On January 13, 2014, The Supreme Court of the United States will hear oral arguments from Senator Mitch McConnell, (R-KY) and others in the case of National Labor Relations Board (NLRB) Vs. Noel Canning – a bottler and distributor of Pepsi-Cola products. Senator McConnell will be arguing in support of the Pepsi distributor. Noel will also be supported by the U.S. Chamber of Commerce during the appeal arguments. The appeal was filed by the NLRB on behalf of the Obama administration.
At issue is whether the President of the United States may by-pass Senate confirmation hearings and fill senior government positions using recess appointment power while the Senate is technically not in recess. Non-working Senate sessions are referred to as pro forma sessions and are held an average of twice per week, usually with a single Senator conducting Senate business in the well with at least two staffers on site to record the business.
The Senator pounds the gavel to begin the Senate session then pounds the gavel again to announce the end of the session. The date of the next session is then recorded and the whole process takes about 30 seconds. No official business is conducted by the Senate during pro forma sessions but is does allow the Senate to remain in session on a technicality, thereby blocking Executive branch recess appointments
A Supreme Court decision against the NLRB will expose a total of four recess appointments exercised by Obama on January 4, 2012, at a time when the Senate was under the impression that they were not in recess. If the Supreme Court upholds the D.C. Circuit’s opinion in favor of Noel, the fallout could effect up to 1,000 decisions adjudicated by the labor board since January 4, 2012.
Senate Majority Leader Harry Reid (D-Nev), enacted pro forma sessions twice a week at the end of 2007 to block Bush 43’s recess appointment power. “I had to keep the Senate in pro-forma session to block the Bradbury appointment ”, Reid said on the Senate floor in 2008. In turn, the Republicans enacted 10 pro forma Senate sessions between Dec. 17, 2011 and Jan. 23, 2012, to block Obama from appointing Richard Cordray as head of the Consumer Financial Protection Bureau.
Obama disregarded the 2011-12 Republican led pro forma sessions and appointed not only Cordray, but he appointed three hand picked pro labor NLRB members to join the existing board of two. This is the crux of NLRB Vs. Noel Canning:
The Pepsi-Cola distributor Noel Canning alleges that on January 4, 2012, Obama illegally bypassed the Senate confirmation process when he appointed 3 NLRB members. His January appointments elevated the number of NLRB members from 2 to 5 and Noel argues that the newly appointed voting members were not in good standing when [the board] decided against Noel, in favor of the International Brotherhood of Teamsters.
Noel further argues that if not for the appointments of the three new board members 30 days before the decision came down against them, the board would not have had the requisite minimum number of members required to decide the original case. Noel argued that the U.S. Senate was not in recess at the time Obama made the recess appointments.
On January 25, 2013, three U.S. Court of Appeals D.C. Circuit Judges agreed with Noel in a unanimous decision. In part stating:
“…appointments made by President Obama to the NLRB on January 4, 2012, were ‘invalid from their inception’… the President exceeded the scope of his authority under the Recess Appointments Clause.”
The NLRB appealed the D.C. Circuit decision on behalf of the Obama administration and on June 24, 2013 the U.S. Supreme Court agreed to hear arguments. At the time the D.C. Circuit decision came down there were more than a dozen similar cases pending in courts of appeals around the country. The decisions made in this case will affect all of those other cases and I suspect both sides in the other cases have contributed where they can to aid their fellow counsel as they prepare to argue before the Supreme Court.
Of interest, and possibly even of more significance, will be the arguments over 2 little words the framers used regarding recess appointments: “the” and “happen.” Yes it’s true, we are back to the giddy days of “It depends on what the definition of ‘is’ is.” The highest court in the land has agreed to hear arguments whether the Executive branch may use recess appointments to fill positions that were vacant prior to Senate recess.
Noel’s side will argue that “the” is a singular reference intended to limit the appointment power to one specific recess which takes place every 2 years when one third of the Senate seats are up for election– not Holidays and other times of recess. The word “happen,” in the framer’s words, the NLRB [the administration] will argue, is equivalent to “happen to exist” as in, it doesn’t matter when the vacancies occurred, just that the vacancies happen to exist. In their 3-0 decision, the D.C. appeals court interpreted “happen” to mean “arise”, as in, the vacancy of the government post must “arise” during “the” Senate recess.
Those D.C. judges are shaking things up in Washington. Hundreds of recess appointments going back to the Reagan administration may be affected unless a non-retroactive stipulation is installed with the final opinion if the opinion goes in favor of Noel. However the Supreme court comes down, it’s significant that arguments will be heard on all three issues relating to the framer’s intent relating to the Executive branch’s recess appointment power.