Recess appointment ruling could spur NLRB delays, congressional gridlock

Listen to this article

The U.S. Supreme Court decision striking down President Barack Obama’s 2012 recess appointments to the National Labor Relations Board invalidated hundreds of rulings made by the board over an 18-month period.

But the ruling in NLRB v. Noel Canning, No. 12-1281, went much further. While establishing the president’s authority to make recess appointments when Congress is not in session for a “sufficient length” of time, it also made clear that Congress can block such appointments by gaveling in short pro forma sessions. That gives Congress the power, if it chooses to use it, to effectively kill the president’s recess appointment authority ¬— something congressional lawmakers have repeatedly done in recent history when rival political parties have controlled Congress and the White House.

“The recess appointment power has receded into practical irrelevance as a result of this practice and [this] decision likely cements that reality,” said Andrew Pincus, a partner in the Washington office of Mayer Brown LLP.

The board is now faced with relitigating hundreds of cases that were decided with improperly-appointed members, and labor and employment attorneys and their clients may face delays due to the bottleneck created by that activity.

“This is going to cause delay after delay after delay,” said Joseph Ambash, the managing partner of the Boston office of Fisher & Phillips LLP, who successfully argued the 2010 case New Process Steel v. NLRB, which invalidated NLRB rulings issued by less than the statutorily-required three-member quorum.

Congress in session ‘when it says it is’

Congressional gridlock led to the 2012 recess appointments that were challenged in this case. At the time, Senate Republicans were holding up votes on pending NLRB nominees in protest over what they believed were overtly pro-union decisions and actions by the board.

With the terms of several board members set to expire, the NLRB was close to falling below the statutory minimum quorum of three members needed under the Supreme Court’s ruling in New Process Steel.

To prevent the president from making recess appointments to the board during Congress’ 2011-12 holiday season recess, lawmakers gaveled in periodic pro forma sessions to keep Congress in session even though no businesses was being conducted.

Despite these efforts, during a three-day break between pro forma sessions in January 2012 Obama made three recess appointments to the board, and also appointed the director of the Consumer Financial Protection Bureau.

Several businesses that subsequently received adverse rulings from the board, including canning and bottling company Noel Canning, challenged the authority of the recess appointments.

The U.S. Court of Appeals for the D.C. Circuit ruled that those appointments were unconstitutional, holding that such appointments can only be made during intersession congressional recesses.

Despite that ruling, the board continued to operate, issuing decisions and rules until members were confirmed by the Senate on July 30, 2013.

The Supreme Court agreed to decide whether the appointments were valid.

In a decision unanimous in its judgment, the court affirmed the D.C. Circuit.

The justices held that the president’s recess appointment power was not limited only to congressional recesses that occur between official sessions of Congress, nor was it applicable only in cases where vacancies occur between sessions of Congress, as the challengers had argued. But, the court said, the Constitution does require such appointments be made during a congressional break “of sufficient length.”

The justices rejected the Obama administration’s argument that the pro forma sessions were not real “sessions.”

“We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Justice Stephen Breyer wrote for the court. “The Senate met that standard here.”

Three days “is too short to trigger the president’s recess-appointment power,” he wrote.

While declining to specifically state the minimum required duration of a recess, the court noted in a footnote that, “[i]n light of historical practice, a recess of more than 3 but less than 10 days is presumptively too short to fall within the Clause. The word ‘presumptively’ leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break.”

NLRB to play catchup

While the NLRB faced a similar situation where hundreds of rulings were invalidated by the court’s ruling in New Process Steel, this ruling could have a far greater effect.

While the challenge in New Process Steel was pending, “the board didn’t issue any controversial decisions, or do anything that changed the board’s precedent,” said Ronald Meisburg, a partner in the Washington office of Proskauer Rose LLP and former NLRB general counsel who also served a recess-appointed member of the board.

And by the time the ruling came down, the board had a quorum of members and they were able to quickly rehear and rule on cases that had been invalidated, largely upholding the original disposition of each case.

This time, Meisburg said, things are different.

“A number of cases that did come out [while Noel Canning was pending] were split decisions,” he said. “There are dissents in many of the cases, and so it will take time to process those cases again.”

The board is now at full capacity with three Democratic and two Republican members, said Ambash, and the randomly-selected three-member panels that rehear cases may not necessarily rubber-stamp the initial ruling, as was the case with the majority of rehearings after New Process Steel

Parties unhappy with the results of a rehearing can seek additional review by the full board, but that process takes time and will lead to a backlog as the board juggles rehearings with the new cases on its docket.

“It’s an issue of resource allocation,” Meisburg said. “Do they put all the old cases on the back burner?”

Meanwhile, the practical effect of the ruling gives Congress a powerful political tool. The president’s recess appointment power may appear strong on paper, but in application it’s been all but eviscerated, particularly in Washington’s highly-politicized climate, Pincus said.

“Even if the President’s party controls both the House and the Senate, the minority party in the Senate can threaten to filibuster a motion to recess for longer than three days, and thereby obligate the Senate majority to convene pro forma sessions,” Pincus said. “So the only circumstance in which the President would be able to make a recess appointment opposed by the non-Presidential party is if the President’s party had a filibuster-proof majority in the Senate and also controlled the House. But in that situation, the President almost certainly could get his nominee confirmed and wouldn’t need the recess appointment power.”

The case before the court did not directly challenge the validity of the appointment of Richard Cordray as director of the CFPB, which was done at the same time and under the same assertion of power as the NLRB appointments. The ruling does in effect invalidate that initial appointment, but Cordray’s subsequent Senate confirmation and the ratification of all actions taken before his confirmation means the ruling has no effect on that agency’s operations. Follow @dcdicta