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Supreme Court hears oral argument in NLRB v Noel Canning

January 14th, 2014  |  Lisa Milam

The U.S. Supreme Court heard oral argument Monday in the eagerly anticipated NLRB v. Noel Canning (Dkt No 12-1281) case, a labor law dispute at its core, but one with much broader ramifications for the scope of presidential authority under the Constitution. At issue is whether President Barack Obama’s three polarizing recess appointments to the NLRB in January 2012 passed muster under the Recess Appointments Clause. Parsing the questions presented by the Justices in today’s deliberations, most High Court observers were poised to predict the ultimate answer would be a resounding “no.”

A labor dispute; a constitutional quandary. The road to the Supreme Court began when Noel Canning, a small beverage company, petitioned for review of an NLRB decision holding that the employer acted unlawfully when it refused to execute a collective bargaining agreement with the Teamsters union. Noel Canning challenged the Board’s order on constitutional grounds, contending the agency had no authority to issue the ruling because it lacked a valid quorum.

On the day the NLRB issued its holding, it purportedly had five members. But Noel Canning contended that three of those members, who were appointed by the President as ostensible recess appointments on January 4, 2012, were not validly appointed because the Senate was not actually in recess. The Senate was operating at that time pursuant to a unanimous consent agreement which provided that it would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012, but that “no business would be conducted” during those sessions.

Siding with the employer, the D.C. Circuit held that the Board did not have a quorum when it issued its order because the recess appointments were unlawful. (The Third and Fourth Circuits have since reached similar conclusions.) The appeals court found the “recess” in the Recess Appointments Clause referred to the period between sessions when the Senate is, by definition, not in session and thus is unavailable to receive and act upon nominations from the President. Finding the “intrasession” interpretation of “recess” unpersuasive, the court disagreed with an Eleventh Circuit ruling to the contrary and rejected the Board’s contention that “recess” means breaks in the Senate’s business when it is otherwise in a continuing session. History supported the employer’s interpretation that “recess” is limited to intersession recesses, the D.C. Circuit determined—notwithstanding the centuries-long history of “intrasession” appointments by presidents of both parties.

The federal government filed a petition asking the Supreme Court to overturn the decision; 45 Republican senators also urged the Court to take the case and affirm. Noel Canning did not oppose a grant of certiorari.

Questions presented. At issue before the High Court were three questions:

(1) Whether the President may use the recess-appointment power during intrasession Senate recesses or whether the power is limited to intersession recesses;
(2) Whether the President’s recess-appointment power is exercisable for vacancies that exist during a recess or whether the power is limited to vacancies that first arose during that recess (Noel Canning had also urged that the NLRB vacancies purportedly filled by the President did not “happen during the Recess of the Senate,” as required for recess appointments under the Constitution)
(3) Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma session.

The last question had not been addressed by the D.C. Circuit; however, this point of law could appeal to the High Court if it seeks to affirm the holding on narrower grounds and eschew the broader constitutional quandary. Notably, while both Democratic and Republican presidents have made “intrasession” recess appointments, only President Obama has appointed nominees during pro forma sessions.

A big case, even by Supreme Court standards. Reflecting the significance of the issues before the Court, Senate Republican Leader Mitch McConnell and 44 of his Senate Republican colleagues requested and were granted permission to participate in oral argument as amici curiae in the case. Miguel Estrada, a partner in the Washington, D.C., office of Gibson, Dunn & Crutcher (and former assistant to the solicitor general) argued on behalf of the Senators. Moreover, the U.S. Chamber of Commerce’s National Chamber Litigation Center (NCLC) filed a brief on behalf of Noel Canning, a member of the trade group, marking the first time that NCLC attorneys directly represented a Chamber member company before the High Court. Many other organizations weighed in with amici briefs as well, including unions, scholars, legal foundations, justice groups, and employers.

The case the parties grappled with was much bigger than the little labor dispute that spawned it. While the Supreme Court’s decision in Noel Canning could mean that all of the rulings handed down by the NLRB since those ill-fated January 2012 recess appointments are invalid — a significant development for the parties in those cases and for labor practitioners — Monday’s argument focused more broadly on the constitutional questions at stake.

The NLRB’s case. Opening his argument on behalf of the NLRB, Donald B. Verrilli, Jr., Solicitor General, urged that to invalidate the recess appointments would “repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.” Further, he warned, “going forward, it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the Framers established.”

Justice Kagan suggested the matter of recess appointments was, in the modern era, a political one rather than a genuine safeguard to ensure the executive branch can function while Congress is away. Presidents of both parties “have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved.”

Responding, Verrilli agreed that “it may be true as a matter of raw power that the Senate has the ability to sit on nominations for months and years at a time, but that is 100 miles from what the Framers would have expected.” But that was a different matter, the other Justices noted, than whether the Senate was available to consider appointments, which was the crux of the case. The Justices quickly narrowed the discussion, questioning Verrilli on how the Constitutional terms “recess,” “vacancy,” and “may happen” are defined, in the government’s view, and whether there is a “recess” within that meaning during a pro forma session.

As for his “status quo” argument that the centuries-long practice of presidential recess appointments warranted deference, notwithstanding what the Constitution actually says on the matter, the Justices appeared skeptical.

Of more immediate concern to the labor law community, Verrilli noted “there are many dozens of board decisions and, perhaps, many hundreds of board decisions that are under a cloud as a result of the D.C. Circuit’s ruling in this case. And so, the board will have a considerable amount of work to do … if the D.C. Circuit’s decisions were to be affirmed.”

Justice Scalia, however, suggested the government would likely rely on the “de facto officer” doctrine, with success. “You don’t really think we’re going to go back and rip out every decision made,” Scalia said.

“I would certainly hope not, Your Honor,” Verrilli replied, “but it certainly casts a serious cloud over the legitimacy of all of those actions.”

Noel Canning’s position. Pleading the employer’s case, Noel J. Francisco of Jones Day pointed to the Advice and Consent Clause. He cautioned that the government’s position “would eviscerate” the check on presidential power embodied in that provision — “creating a unilateral appointment power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the President.” Responding to Justice Ginsburg’s contention that his alternate stance would “destroy the recess clause,” Francisco argued that “the recess appointment power is a contingent one. It arises only when the Senate chooses to trigger it by ending its session and beginning its recess. So the Senate always has the power to prevent recess appointments.”

Presented too with the question of what to do with the long historical record of recess appointments, Francisco questioned the premise that such “an unbroken and never contested practice” existed. At any rate, he argued, “The political branches of the government have no authority to give or take away the structural protections of the Constitution. They don’t exist to protect the Senate from the President or the President from the Senate. These are liberty-protecting provisions that protect the people from the government as a whole. So if the Constitution is quite clear as to what those structural protections are, but the political branches, assuming for the sake of argument, have conspired to deplete them, that is illegitimate, and it should be rejected by this Court.”

As a practical matter, Francisco noted that while the recess appointments clause may have been essential in the historical context, lest the Senate be subject to a recall in emergency sessions every time the President needed to confirm a nominee, “today, the Senators can get back to Washington, D.C. very easily …. They’re perfectly willing to be hailed back if necessary.”

As for the potentially dire consequences for the NLRB were the High Court to uphold the D.C. Circuit, Francisco downplayed the impact, noting that “going forward the government can solve the problem through agency ratification of past decisions. Going backward, there are a variety of doctrines that would limit anybody’s ability to actually challenge those past actions, including, for example, the APA’s 6-year statute of limitations on challenging final agency action, various finality rules that would prohibit a party from raising an issue that they could have but failed to raise in an earlier proceeding, and various justiciability doctrines, like mootness, standing, and, Your Honor, the de facto officer doctrine, at least outside of the context of direct appeal.”

The Senate’s stake. From the vantage point of the Republican senators, “this is all about how the Senate chooses to arrange its affairs under the Rules of Proceedings Act,” said Estrada, arguing on their behalf. He reiterated: “the Senate by the design of the Constitution, the Appointment Clause, the primary method of appointment, has an absolute veto over nominations.” As for the practical need for recess appointments, Estrada observed as well that, with the nation having moved into the modern age, “the rules of the Senate tend to provide for the Senate to be available at the drop of a hat.”

Estrada also downplayed the drastic consequences envisioned by the government. “For all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles—there is no parade, and there is no horrible. The only thing that will happen is that the President, heaven help us, will be forced to comply with the advice and consent that the Appointments Clause actually calls for.”