As the Supreme Court considers whether President Obama violated the Constitution during his first term.
Oral arguments slated for Monday will center on a trio of recess appointments to the National Labor Relations Board (NLRB) that were deemed unconstitutional by lower courts. If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.
For decades, presidents have used recess appointment powers, when the Senate is away to install judges and fill top federal vacancies that ordinarily would be subject to confirmation proceedings.
But with the disputed NLRB appointments, Obama became the first president to appoint nominees, when the Senate was in a “pro-forma” session, when the upper chamber is briefly called to order and adjourned every few days.
The sessions are intended to prevent recess appointments, and usually only a handful of senators are present for them. In filling the NLRB posts, the Obama administration claims that the Senate is generally not available to conduct business during the sessions, so the president’s recess appointment power is in effect.
The impetus for recess appointments has faded now that Senate Democrats have changed their chamber’s rules to allow for a simple majority vote on presidential nominees.
The case was brought by Noel Canning, an Oregon-based soft drink bottling and distribution company that challenged the appointments as unconstitutional.
In January of last year, the D.C. Circuit Court of Appeals agreed.
Under its decision, the president can only make such appointments when the Senate is in recess between sessions of Congress, and only if a vacancy occurred in that same time period. A Congressional Service Research report found 329 such appointments since 1981 that would not meet that criteria and would be ruled void if the appeals court decision was law.
The private sector mobilized a massive lobbying campaign after Obama’s election, fearing a Democratic president might enact a host of policy changes favorable to unions.
The effort first targeted legislation that would ease union organizing but shifted to the NLRB nominees and its decisions.
The NLRB has had its decisions overturned by the high court before. In 2010, the Supreme Court found the board lacked the authority to make decisions for more than two years because it only had two members — one short of a quorum.
About 600 NLRB decisions were made in that time period, and the board was forced to go back through about 100 of them.
Arguments, attorneys with the U.S. Chamber of Commerce will argue on behalf of Noel Canning that the NLRB operated without a quorum for well over a year, causing confusion for both employers and employees. The Obama administration’s case hinges on winning three points, according to Georgetown University Law Center’s Nicholas Quinn Rosenkranz, who is arguing against the government.
First, it must convince the justices that presidents may make appointments during regular recesses and not, as the appeals court ruled, only during the breaks between numbered sessions on Congress.
Next, the court must agree that the appointments may include the filling of vacancies that existed before the recess began, rather than those that occurred during a recess.
Finally, it must conclude that the pro-forma sessions do not count as formal sessions of Congress.
Proving all three points, particularly the last, would be a tall order.
SOURCES—THE HILL, KEVIN BOGARDUS, BEN GOAD