The Supreme Court will be called on yet again to settle a dispute between the Obama administration and its Republican critics on Monday when it hears arguments in the case of the National Labor Relations Board v. Noel Canning.
At issue in the case is whether President Obama legally appointed three officials to the National Labor Relations Board (NLRB) using recess appointments, the term used when the president approves someone for an executive branch position – a process that normally requires confirmation by the Senate – while senators are out of town. The Supreme Court will examine whether the president can make appointments during recesses that occur during a regular Senate session or only during the once-a-year breaks that occur between sessions, and whether the position that is being filled must have been vacated during the same break in order for the president to use a recess appointment.
A Washington state bottling company called Noel Canning was on the losing end of a dispute with its local Teamsters union over pay that was regulated by the NLRB. Because the board that sided with the union contained three members who were approved by recess appointment, the company – along with many of the country’s top Republicans – are challenging the ruling. Three federal appeals courts sided with Noel Canning that the recess appointments were improper, and without them, the NLRB would not have had the five-member board necessary to take action on a labor dispute.
So why did Mr. Obama appoint the three members to the board? Senate Republicans, who charge that the NLRB is a politically-charged bureaucracy, had used a series of so-called “pro forma” sessions during in January 2012 to prevent Mr. Obama from making appointments to the board (Democrats used similar tactics to block President George W. Bush from appointing his nominees). The president ignored them and did it anyway, also appointing Richard Cordray to head the Consumer Financial Protection Bureau.
“I am not going to stand by while a minority in the Senate puts party ideology ahead of the people we were elected to serve,” he said at the time.
The administration has argued that the court would invalidate the more than 600 people appointed by 14 different presidents during Senate recesses if it were to rule against them. Because the Senate was not conducting business during the pro forma sessions, it was in recess, argued Solicitor General Donald Verrilli Jr.
Republicans say that’s not the case – the Senate and the Senate alone states when it is in recess, they say. All 45 Senate Republicans filed an amicus brief with the Supreme Court siding with Noel Canning. By making the recess appointments, they write, the president “usurped two powers the Constitution confers on the Senate – and claimed a unilateral appointment authority that the Framers intentionally withheld.”
The subject of presidential appointments has been the subject of plenty of disputes between Democrats and Republicans through most of Mr. Obama’s presidency. Recently, Senate Majority Leader Harry Reid, D-Nev., invoked the so-called “nuclear option” to prevent the minority party from using a filibuster to block judicial and executive branch nominees after Republicans repeatedly blocked votes on Melvin Watt, a Democratic congressman, to head the Federal Housing Finance Agency, and four nominees to the U.S. Court of Appeals for the District of Columbia Circuit.
The NLRB was also the subject of previous debates during which Reid threatened to use the nuclear option to ease the way for Mr. Obama’s appointees. Over the summer, Democrats and Republicans reached a deal to confirm the NRLB chairman, Mark Pearce, as long as Mr. Obama agreed to drop two other NLRB nominees and replace them with new ones.