Obama's NLRB "recess" appointments invalid
I looked and didn't see a thread on this... you guys are dropping the ball!
So, it looks like every NLRB decision since January of 2012 will be invalidated. This is a VERY HEALTHY slap in the face to Obama's constant abuse of executive power.
Here is a great article on it
Ugh. Washington Times.
Anyways. My thoughts are... this is a huge legal nightmare. We're talking about invalidating hundreds of regulations created by the NLRB board, and of course this would narrow the board down to 1 person, which would shut it down. Yikes.
Glad to see you actually posted about this. I resisted because I thought there'd be no interest. This is a pretty huge deal.
This is sure to end up at the Supreme Court, and while I don't think the Appeals Court was necessarily wrong on the merits of the case, SCOTUS does tend to be pragmatic so I'd have to think these appointments would be upheld under some incredibly esoteric interpretation that could never really be duplicated in the future.
I thought this was a pretty big deal when I first heard it. But then I started reading up on it in articles like this one, and I honestly had no idea how much the NLRB does.
A court just struck down Obama’s labor board. Here’s why it matters.
Posted by Brad Plumer
on January 25, 2013 at 3:16 pm
Big news: A federal appeals court has just ruled that President Obama exceeded his constitutional authority when he made three appointments to the National Labor Relations Board in January 2012 while the Senate was on break.
If the ruling stands — and that’s still a question mark — it would mean two big things for the five-member labor board. First, the NLRB would have just one valid appointee left, which would prevent it from deciding any further labor cases. (At least three sitting members are needed for a quorum, though the board could still hold union elections and investigate unfair practices.)
Second, and just as significantly, hundreds of NLRB decisions that have been handed down since January 4, 2012 would suddenly become invalid. That includes rulings on everything from how workers can use social media to regulations on union dues-checkoffs.
Let’s start with the first one: If the NLRB lost three of its members, labor experts warn that the agency would no longer be able to oversee union elections effectively. “Workers illegally fired for union organizing won’t be reinstated with back pay,” explained former board chair William Gould. “Employers will be able to get away with interfering with union elections. Perhaps most importantly, employers won’t have to recognize unions despite a majority vote by workers. Without the board to enforce labor law, most companies will not voluntarily deal with unions.”
In theory, the Senate could solve this problem by confirming new appointees. Yet in recent years, Republicans have vowed to block all of Obama’s NLRB appointees, particularly after the board filed a controversial lawsuit against Boeing in 2011. In response, the White House tried to recess-appoint three members to the board on Jan. 4, 2012 while the Senate was on break. (That’s the move that the appeals court ruled unconstitutional.)
Since that time, the NLRB has handed down hundreds of decisions relating to various aspects of labor law. If the decision by the D.C. Circuit Court holds up, all rulings since Jan. 4 will vanish. Here’s a sample of some decisions that could be invalidated:
— Protections for workers who use social media. Recently, the NLRB issued a series of rulings saying that employees have a right to discuss workplace issues without fear of retribution, even if those discussions take place on Facebook or Twitter. The NLRB forbade companies from banning “disrespectful” comments on social media as long as employees were engaged in conversation with each other. (There were some exceptions: Firms could step in to prevent lone workers from going on online “rants.”)
— New rules on union dues-checkoffs. In a unionized workplace, the employer typically automatically withholds money from employee paychecks for union dues. But for 50 years, there was a key exception: Employers didn’t have to do this if the collective bargaining agreement had expired. The unions had to collect dues on their own. In a December decision, however, the NLRB reversed this precedent, arguing that the employer needs to handle dues-checkoffs even during this period.
— Expanded powers for unions to get information from employers. Whenever unions are bargaining or filing grievances, they are allowed to ask their employers for “relevant” information — say, about health or safety conditions. But for a long time, employers had some leeway to resist these requests. Not any more: In a November decision involving two trucking companies, the NLRB ruled that “an employer must timely respond to a union request seeking relevant information even when the employer believes it has grounds for not providing the information.”
Over the past year, many companies and conservatives have criticized Obama’s NLRB for issuing a slew of sweeping pro-labor rulings. But Kate Bronfenbrenner, a labor expert at Cornell, says the past year hasn’t been particularly unusual. Labor boards appointed by Democratic presidents tend to look more favorably on workers and unions, while those appointed by Republican presidents tend to side with employers.
“It’s always been a political agency,” she says, “and it always swings back and forth.”
Bronfenbrenner adds that if the D.C. Circuit Court’s ruling is upheld and the NLRB does have to shut down — and if it sees a year’s worth of work invalidated — that could make the agency even more dysfunctional in the years ahead. That’s because all of those cases from 2012 will have to be reheard, and new cases will keep piling up. “If and when the Senate finally does confirm new appointees, the new board will have to confront a huge backlog.”
It’s still not clear, however, whether Friday’s ruling will ultimately stand. The three-judge panel acknowledged that its ruling conflicted with other circuit court rulings on the subject of recess appointments, and the matter may ultimately end up before the Supreme Court.
In the meantime, the NLRB issued a statement saying that it disagrees with Friday’s ruling and will continue operating normally until the legal issues are fully resolved. “The parties who come to us seek and expect careful consideration and resolution of their cases,” said NLRB Chairman Mark Pearce, “and for that reason, we will continue to perform our statutory duties and issue decisions.”
The actual decision: http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf
Yes, I have it bookmarked.
.....and this is why I think SCOTUS will overturn, as they have typically before.
Court decision on recess appointments could make America harder to govern
Posted by Neil Irwin
on January 25, 2013 at 2:37 pm
This has been a terrible week for anyone who wants to see a crisp, well-run U.S. government. First, Senate Majority Leader Harry Reid (D-Nev.) opted to make only minimal changes to the filibuster, which will allow a minority of senators to continue to block any legislation they may wish to. And a court ruling on Friday threw into doubt the ability of the president to get around bottlenecks in the Senate to get his nominees into office.
A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit ruled that President Obama’s “recess appointments” of members to the National Labor Relations Board last year exceeded his constitutional authority. The constitution allows the president to appoint senior officials without Senate confirmation when the Senate is in recess. (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate,” says Article II, “by granting Commissions which shall expire at the End of their next Session”.)
Presidents use this power sparingly, as it tends to inflame tensions with the Senate. But it is a key way for presidents to get their nominees into position when faced with an obstructionist Senate. It is even more important for the implied threat to the lawmakers: Confirm my nominees, the president can say, or I’ll appoint them during your recess and freeze the Senate out of the process entirely.
Senate Republicans were blocking consideration of Obama’s nominees to agencies whose work they generally dislike, namely the NLRB and the Consumer Financial Protection Bureau created by the Dodd-Frank Act. Nothing personal about the individual nominees themselves; the lawmakers just didn’t want to staff the NLRB and CFPB at all. Eventually fed up, Obama appointed new NLRB board members and Richard Cordray as director of the CFPB during the Senate’s holiday recess last winter.
The Senate, though, was holding “pro forma” sessions every few days, gaveling in and then out so that it could claim to not be in recess at all. The appeals court ruled Friday that the gaveling counted as being in session, meaning the recess appointments weren’t valid.
The decision will surely be appealed, but if it is upheld, it would essentially make the constitutional provision for “recess appointments” invalid — the Senate could always use the pro forma sessions to prevent a president from making such appointments. If that happens, Obama and future presidents will have less leverage in trying to force the Senate to consider nominees.
The recess appointment may have only been used as a last resort, but it was part of the president’s arsenal in getting the Senate to act. And it isn’t a partisan issue. President George W. Bush used recess appointments a handful of times, including to install John Bolton as ambassador to the United Nations over strenuous Democratic objections. Under the legal principle described in the court ruling, presidents of either party will not be able to use that method to push through their nominees.
If the court ruling stands, one of the key tools that presidents have long though sparingly used to run the country — this one spelled out in the Constitution itself! — could become useless.
The Washington Post has been all over this shit, by the way.
Here's a piece outlining the issues at hand in the case. This is a must-read if this is honestly a new thing to you.
Court says Obama exceeded authority in making appointments
By Robert Barnes and Steven Mufson
Jan 26, 2013 03:47 AM EST
President Obama exceeded his constitutional authority by making appointments when the Senate was on a break last year, a federal appeals court ruled Friday. The court’s broad ruling would sharply limit the power that presidents throughout history have used to make recess appointments in the face of Senate opposition and inaction.
A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit flatly rejected the Obama administration’s rationale for appointing three members of the National Labor Relations Board (NLRB) while the Senate was on a holiday break.
Chief Judge David B. Sentelle sharply criticized the administration’s interpretation of when recess appointments may be made, saying it would give the president “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.” He added, “This cannot be the law.”
The issue seems certain to end up before the Supreme Court, which ultimately could clarify a president’s authority to fill his administration and appoint federal judges when a minority of the Senate blocks consideration of his choices.
Although recess appointments have been made throughout the nation’s history, they have been more commonly made by modern presidents who face partisan opposition that has made it hard for nominees to even receive a vote in the Senate.
Additionally, Friday’s decision casts doubt on hundreds of decisions the NLRB has made in the past year, ranging from enforcement of collective-bargaining agreements to rulings on the rights of workers to use social media.
The ruling also raises questions about the recess appointment of former Ohio attorney general Richard Cordray to head the fledgling Consumer Financial Protection Bureau and about the actions taken by the agency during his tenure, including major new rules governing the mortgage industry. Obama named Cordray at the same time as the NLRB nominees, and his appointment is the subject of a separate lawsuit in D.C. federal court.
The White House criticized the court ruling. “The decision is novel and unprecedented, and it contradicts 150 years of practice by Democratic and Republican administrations,” White House press secretary Jay Carney told reporters Friday. “We respectfully but strongly disagree with the ruling.”
Presidents from both parties have made hundreds of recess appointments when the Senate has failed to act on nominations. Ronald Reagan holds the record with 243. Obama’s predecessor, George W. Bush, made 105, and it was during his term that Senate Democrats began holding pro-forma sessions, some lasting less than a minute, when the Senate went on break. They contended that that kept the Senate in session and did not allow Bush to make recess appointments.
Republicans took up the practice when Obama was elected. But Obama decided to challenge it in January 2012, when the Senate was on a 20-day holiday but holding pro-forma sessions every three business days to block presidential action.
Obama moved ahead with the nomination of Cordray, who many Republicans considered overly antagonistic toward business, and three NLRB members — Sharon Block, Terence F. Flynn and Richard F. Griffin Jr.
At the time, the NLRB had only two members and was thus unable to take any official action. Some Republicans were worried that the board under Obama would be too pro-union.
Obama said he had the authority under the Constitution’s recess appointments clause, which grants power for such appointments “during the Recess of the Senate,” when senators are unavailable to provide their advice and consent.
Sentelle, joined by Judges Karen LeCraft Henderson and Thomas B. Griffith, said that the Constitution’s reference to “the Recess” means that appointments are allowed only during the recess between sessions of the Senate, not when the Senate is simply on a break. It was not up to the president to decide what constitutes a recess, Sentelle said.
The ruling noted that another federal appeals court has read the Constitution differently, which adds to the likelihood the Supreme Court will have to settle the issue.
Sentelle and Henderson went where apparently no other court has gone. They said that the president has the authority to make appointments only to vacancies that arise during a recess, which would drastically limit a president’s ability to make use of the recess appointment power.
A senior administration official who was granted anonymity to discuss White House legal strategy said it was unlikely that the White House would ask the full D.C. Circuit court to take up the case. The official said it might be better to wait for other courts around the country to rule on similar cases and then seek Supreme Court review.
Senate Republicans said the decision was a victory for the separation of powers.
“Today’s ruling reaffirms that the Constitution is above political party or agenda, despite what the Obama administration seems to think,” said Sen. Orrin G. Hatch (R-Utah).
Some Democrats said the ruling will encourage Senate Republicans to block Obama’s nominees by refusing to allow them to come to a vote.
“Today’s circuit court decision is not only a radical departure from precedent, it ignores the fact that President Obama had no choice but to act,” said Sen. Tom Harkin (D-Iowa). Harkin said that “throughout his presidency, Republicans have employed unprecedented partisan delay tactics and filibusters” to block Obama’s nominees.
The case was brought by Noel Canning, a company in Washington state that challenged an NLRB ruling by saying the three Obama board members were not properly appointed. The court’s ruling on Noel’s behalf leaves hundreds of decisions in which the three members have participated open to court challenge. Block and Griffin continue to serve. Flynn resigned last year.
NLRB Chairman Mark Gaston Pearce said the board, which now has only three members, will continue with business as usual.
“It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals,” Pearce said in a statement on the board’s Web site.
But labor unions were alarmed. “Chaos” is the way Pamela Allen, legal director of National Nurses United, described the effect of the court ruling. She said, “It’s a field day for the employers. This decision will be appealed, but to a [Supreme] Court that hasn’t always been friendly to labor over the years.”
Allen said that hundreds of NLRB rulings might be contested by employers. One example, she said, was a recent ruling to force a rural California hospital to award back pay to union activists and to accept a vote by its nurses to let the union bargain on their behalf.
Charles I. Cohen, a former NLRB member and senior counsel in the labor and employment practice of the law firm Morgan, Lewis & Bockius, said the result of the court ruling was “a cloud” over the NLRB that would “present a quandary for employers about how to comply with the law.”
The work of the Consumer Financial Protection Bureau could also be in jeopardy because the law requires the agency to have a director in place before it can exercise its power to write regulations and enforce them.
In the past three weeks alone, the bureau has issued seven rules changing the way that homeowners interact with the mortgage industry by limiting upfront fees, providing free appraisals and curtailing harmful practices such as interest-only payments, among other things.
“There will be lots of lawsuits, lots of uncertainty about what the rules of the road are, and lots of taxpayer money wasted on things that potentially turn out to be invalid,” said Andrew J. Pincus, an attorney who represents the U.S. Chamber of Commerce.
Cordray’s recess appointment expires at the end of this year. Obama renominated him on Thursday, but GOP leaders have said they continue to oppose him.
No way the Supreme Court overturns this and strips the Senate of their power. The entire reason they were not letting the Senate go into recess was to not let the President go around them. Recess appointments are NOT meant to be used to usurp the normal process. Why even have a ****ing Senate if the President can just do whatever the **** he wants?
You have a problem with recess appointments? Take it up with the Constitution. It is a specifically enumerated power of the executive branch.
Appellate courts disagree on this issue, actually. The general consensus, however, is that a ruling like this is an aberration.
here is the only point that can be argued...
From the Washington Times article:
"At issue is the notion of what constitutes a "recess" appointment. Presidents have the absolute authority to make recess appointments without Senate approval. Those appointments are temporary. Recess appointments are never popular, but they are legal. This is not in dispute. The situation becomes murky when the Senate holds "pro-forma" sessions.
A pro-forma session in recent years has involved the Senate opening for as little as thirty seconds where one person shows up and bangs a gavel. In other words, even though little to no work is done at many of these sessions, it counts as an actual session. This is designed specifically to avoid being categorized as a recess, even if most members are gone for several weeks.
President Obama argued that these pro-forma sessions were a complete sham. On this issue, he is right. They violate the spirit of the law."
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