This morning, the Supreme Court of the United States heard 90 minutes of oral argument in a landmark case regarding the constitutionality of President Obama’s January 4, 2012 “recess appointments” to the National Labor Relations Board (NLRB). If the Court adopts the decision of the U.S. Court of Appeals for the District of Columbia in this case—Noel Canning v. NLRB—as well as that of two other circuit court decisions, as urged by the Chamber of Commerce of the United States and by Ogletree Deakins in an amicus brief filed on behalf of the Council on Labor Law Equality (COLLE), it will invalidate decisions that the NLRB, without a quorum of Board members, issued since that date.
Early reports from those in attendance at the oral argument indicate that the Court seemed highly skeptical of the administration’s recess appointments, which may exceed the president’s powers under the U.S. Constitution. A majority of the justices—including those from both sides of the ideological divide—asked questions attacking the recess appointments, with Justice Kagan expressing doubts similar to those expressed by Chief Justice Roberts and Justice Scalia. Justice Kagan commented that “it’s really the Senate’s job” to decide when it is in recess, not the president’s. A majority of the justices appear prepared to find the recess appointments unconstitutional because they were made when the Senate was in pro forma session, and thus, not in “recess.”
It is not clear, however, if there is a majority of justices that would invalidate the appointments on the broader ground found by the D.C. Circuit. On January 25, 2013, the D.C. Circuit had found that the recess appointment power arises only during the short annual intersession recess and that the Board member vacancy to be filled must also arise during that same period. Thus, regardless of whether the Senate was in pro forma session, the appointments would be invalid under the D.C. Circuit rule since neither the appointment of members nor the Board’s vacancy took place during the annual intersession. Justice Breyer observed, “Over time, language in the Constitution takes on a somewhat different meaning.” A decision is expected by June.
If the Court rejects the president’s recess appointments to the Board as invalid, all decisions made by the NLRB since January 4, 2012—and perhaps even earlier—will be invalid, and those cases must then be reconsidered. The Court’s decision has even broader implications for future recess appointments and therefore has attracted the attention of those outside of the labor-management community.
Harold P. Coxson is a principal with Ogletree Governmental Affairs, Inc. and a shareholder in the Washington, D.C. office of Ogletree Deakins.