By Sam Hananel
WASHINGTON — In a major test of presidential power, federal appeals courts are starting to hear legal challenges to President Barack Obama’s decision to bypass the Senate in appointing three members to the National Labor Relations Board.
The challenges in more than two dozen labor cases around the country have been winding their way through the legal system since Jan. 4, when Obama moved to fill vacancies on the board under the constitutional provision for filling an office when Congress is in recess.
Obama’s move outraged business groups and Republican leaders, who contend the appointments were unconstitutional because the Senate technically was in session when the president acted. Administration officials say the Senate actually was in a 20-day recess, and the tactic of gaveling in and out of session every few days solely to avoid being in recess was a sham.
The 7th U.S. Circuit Court of Appeals in Chicago will be the first court to hear oral arguments on the issue Friday. The U.S. Court of Appeals for the District of Columbia Circuit was expected to take up the issue in a similar case Wednesday.
The courts will determine whether Congress indefinitely can block a president from appointing key administration officials by staying in pro forma sessions — where one Senator briefly goes into the chamber and no real business is conducted.
Legal experts say the outcome is uncertain because there is little precedent on the issue. Compelling arguments can be made to support both the exercise of the president’s appointment power and the authority of the Senate to decide when it is in recess.
“All bets are off in this case,” said Carl Tobias, law professor at the University of Richmond. “It’s a close question because there are good arguments on both sides.”
Ultimately, the issue likely will end up before the U.S. Supreme Court sometime in the next year.
Obama has said he made the recess appointments to prevent the labor board from effectively being shut down, unable to referee labor-management disputes or rule on unfair labor practices. Senate Republicans, angry at the board’s pro-union decisions, had vowed for months to block any appointees to the board. At the time, the board was down to only two members and, under a Supreme Court ruling, it must have at least three members to function.
Obama also used his recess appointment power in January to install Ohio attorney general Richard Cordray as head of the Consumer Financial Protection Bureau.
Hal Bruff, a law professor at the University of Colorado at Boulder, said a victory for Obama could help improve a Senate confirmation process where nominations routinely are blocked for months or years.
“It’s important because the confirmation process is so broken down,” Bruff said. “In a deeply dysfunctional Congress, the president is looking for some way to get business done.”
The Justice Department is taking the challenges seriously, sending Deputy Assistant Attorney General Beth Brinkmann to argue the cases for the Obama administration in both Chicago and Washington.
Senate Republicans, led by Minority Leader Mitch McConnell of Kentucky, have filed a friend-of-the-court brief in the case in Washington. They argue that the president cannot have the power to decide the Senate is in a “de facto” recess if the Senate deems itself to be in session.
“The Constitution confers no such power, and allowing the president to wield it would oust the Senate from its own constitutional role,” the senators’ attorney, Miguel Estrada, wrote in the brief.
Estrada, who has been allotted time for oral arguments on Wednesday, was himself nominated to the federal appeals court in Washington in 2001. But his confirmation was blocked for two years by Senate Democrats and he later withdrew.
The case in the D.C. Circuit is being brought by Noel Canning, a Washington State business that bottles and distributes soft drinks. The company is challenging the NLRB’s determination that it must enter into a collective bargaining agreement with a labor union. It argues that the board did not have a quorum to issue a decision because the recess appointments are invalid.
In the 7th Circuit, the court is hearing two consolidated cases in which the NLRB found that union officials interfered with workers’ rights not to join a union or pay union dues. The National Right to Work Foundation is appealing the board’s decision in part based on the recess appointments.
If the appeals courts find the recess appointments were unconstitutional, it could invalidate more than 240 decisions the labor board has issued since January. That could be a mess for companies who have already made decisions based on union contracts or workers who have won union recognition.
“The alleged recess appointments cast doubt on the agency’s work, adding uncertainty to the economic climate,” said Sheldon Gilbert, an attorney at the U.S. Chamber of Commerce, which is helping litigate several of the cases against the board.
But NLRB Chairman Mark Gaston Pearce said employees and employers across the country are counting on the board to protect their rights and resolve their disputes.
“That is what my colleagues and I have been doing for the past year and hope to be able to continue doing into the future,” Pearce said.
Craig Becker, co-general counsel of the AFL-CIO and a former board member, said all the legal uncertainty has been a distraction for the NLRB general counsel’s office.
“I think it’s certainly slowed the board down in terms of enforcement,” Becker said. “It’s been an issue raised in many cases that wouldn’t have required court of appeals action, so that, I think, is unfortunate.”
Becker praised Obama for making the recess appointments, saying a nonfunctional labor board would be even worse for workers who rely on it.