THEIR VIEW: NLRB recess appointments ruling an important one

By The West Virginia Record | Feb 1, 2013


The United States Court of Appeals for the D.C. Circuit hears important appeals involving federal power that originate in our nation's capital. Late last week the D.C. Circuit court, often called the second-highest court in the land, rocked the White House and Capitol Hill with a major decision on the separation of powers in the United States. The court invalidated three appointments to the National Labor Relations Board ("NLRB"); however, the implications of the ruling are much, much broader.

The ruling explored in detail the contours of the presidential appointment power with particular emphasis on when and how it can be used without the "advice and consent" of the Senate. The Federal Constitution provides that a president may appoint officers of the United States without the advice and consent of the Senate when the Senate is in "the recess."

While the Senate has a recess at the conclusion of each term, over time presidents had expanded the meaning of the word "recess" to include anytime the Senate was not working for weeks during a session. There are several such gaps in every Senate session.

President Obama, in making his nominations, took that power even further, claiming that it was up to the President to decide if the Senate was in "recess" or not. Accordingly, under President Obama's view, he could appoint officers of the United States to head various federal agencies or to serve as district or circuit court judges without the advice and consent of the Senate any time he deemed the Senate to be not in session.

The issue finally came to a head when NLRB members who were appointed in this fashion took action against an American named Noel Canning who challenged the action on the grounds that the appointments were invalid.

The D.C. Circuit agreed and struck down the NLRB's actions since three of the five board members had not been validly appointed. The court found that there was no quorum and accordingly, the NRLB could not act. Strikingly, the NLRB has stated it will defy the decision of the court.

While the issue of presidential appointment power may seem a rather dry and dusty legal issue, the consequences of it are highly significant. In order to take the federal government in the direction that he wants, a president needs to appoint leadership to the various federal agencies, as well as federal judges, and other important figures in Washington.

The power of the United States Senate to give (or withhold) advice and consent on those nominations is a critical feature of the separation of powers - our "checks and balances" in Washington. The Senate's power forces the President to cooperate with the Senate and, at least in theory, prevents the appointment of extremist nominees, or individuals who are loyal to the President alone, or those who may lack the requisite qualifications for these important posts.

The issue is, of course, destined for the Supreme Court of the United States. It is interesting that President Obama's second term already has a major separation of powers issue that will need to be decided by the Supreme Court.

Most of us recall that in his first term there was considerable discussion about whether or not the President's health care initiative would survive constitutional muster. In that circumstance, though the President and the administration's attorneys long defended the law as one that was constitutional under the Commerce Clause and its associated powers, that position was ultimately rejected by the United States Supreme Court which instead permitted the health care plan to be upheld as a "tax."

Chris Regan is an attorney with Bordas & Bordas in Wheeling.

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