Friday, January 25, 2013

D.C. Circuit Holds NLRB Recess Appointments Unconstitutional


UPDATE:  Chairman Pearce just released a statement that is in line with my prediction that the NLRB would continue to decide cases despite the ruling (not that my prediction was particularly bold; the Board is just doing what it did during the two-member issue).


The D.C. Circuit just struck down the NLRB recess appointments.  I haven't had time to more than glance at the decision, but it obviously has major ramifications, as--like the New Process, two-member Board issue--it holds the prospect of voiding decisions.  It also could play a role with the new Consumer Financial Protection Bureau, which also had a recess appointment at the time.  I suspect that what we will see next is a reprise of the New Process situation, in which the NLRB uses its nonacquiescence policy and continues to issue decisions and we'll have to wait for the Supreme Court to see what happens to those decisions.  I did a rough Westlaw search and came up with 499 cases in which Members Block, Flynn, or Griffin participate, so we're talking about a lot of cases that could be in jeapardy, including subsequent ones if the Board does what I just predicted it will do.

In Noel Canning, the court agreed with the NLRB's substantive findings in the case, but that was mooted by its holding that the NLRB recess appointments were unconstitutional.  After holding that it had jurisdiction to decide the matter--no small thing given the separation of power tensions at play--the court essentially held that the Senate really wasn't in recess.  They defined recess as when Congress isn't in one of its regular two or three sessions.  The decision is a long one and reaches out to other related appointment practices (prompting a concurrence that objected to overreach).  Moreover, in a 2004 case, the 11th Cir. held to the contrary, so we might expect a Supreme Court grant of cert. if the D.C. Circuit doesn't take this en banc.  On that note, the panel was quite conservative (Sentelle, Henderson, and Griffith--who, coincidentally, filled the slot that a lawyer in the case, Miguel Estrada, was originally nominated for), so it's not impossible that the full court will re-examine this.  Stay tuned.

Hat Tip:  Michael Lightner


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The ramifications of this decision extend far past the NLRB. It essentially eviscerates the President's power to make recess appointments.

Posted by: Josh | Jan 25, 2013 10:38:12 AM

I'm curious to know when Peter Kirsanow will be repaying the federal government for the two years of Senior Executive salary he received for accepting blatantly unconstitutional recess appointments to the Board.

Posted by: jw | Jan 25, 2013 10:52:05 AM

I read this blog because it is useful to stay abreast of what the academic community is telling itself, but I must confess to being disappointed with the response to this issue. We all know that like most liberals you support President Obama -- but if you really are committed to an intellectually honest teaching of what the law is, how can you uphold an interpretation of the Constitution that would allow the President to bypass "advice and consent" whenever the Senate breaks for lunch? You folks had the opportunity for a Sister Souljah moment, and you blew it. Oh, and by the way, before you post some snarky reply, please confirm that you've read all 47 pages of the D.C. Circuit's opinion; it is powerful stuff.

Posted by: Tim O'Connell | Jan 25, 2013 12:46:13 PM

This decision is a perfect example of everything that is wrong with "originalism" as a philosophy. I have no reason to doubt the validity of the majority's analysis. I found it generally persuasive, and I think that it has the history more or less correct given what I know about the way Congress worked in the 1780s (which makes this opinion somewhat unlike, say, Heller, which is a pack of historical nonsense).

I simply don't care. It is utterly bizarre to me that a modern court can render a judicial opinion without coming to grips with the fact that institutions designed for 1780s governance will-- not may, but will-- fail to address modern problems. Our entire current system of governance is a jerry-rigged system designed, as much as possible, to ignore the text of the Constitution. We rely on half-baked theories (like modern Commerce Clause jurisprudence, which is the justification for the NLRB's existence in the first place) because there is literally no other alternative. An originalist government would be utterly dysfunctional.

We have now arrived at a situation in which a single senator (so long as his party controls at least 41 seats in the Senate) can shut down the functioning of multiple agencies of the executive branch FOREVER. If the esteemed judges of the Circuit Court are as interested in history as they claim to be, I would strongly suggest that they google the phrase "liberum veto," and then examine the fate of the society which stumbled into that system of governance.

Posted by: Anon | Jan 25, 2013 4:14:18 PM

Tim, although I generally (although certainly not always) have a liberal view of labor issues, none of my posts on recess appointments to the NLRB, including this one, has expressed a political view. Heck, I didn't say anything in the post about my view of this decision. One reason is that I don't view this issue from a political bent--my overriding concern has been that the NLRB should be at full strength. Indeed, I criticized President Obama when he proposed to fill only the vacate Democratic slots.

As for the decision, the constitutional law issues are not my expertise, so I won't get into a battle on substance. However, the decision openly takes a hard, originalist position. If I agreed with that view of constitutional interpretation, it would be quite convincing. But that's still a minority view and, to my mind, doesn't require any Sister Souljah moments on my part. Many presidents have made recess appointments that this decision would hold unconstitutional and I don't remember Republicans objecting when their side was the one making appointments. I wasn't objecting either, so I don't feel like anything I've written on the NLRB appointments reveals a slanted or hypocritical view.

Posted by: Jeff Hirsch | Jan 25, 2013 7:11:01 PM

Well it was bound to happen and I can't say I'm surprised that it happened in the context of an NLRB case. I'm with Anon, read the historical coherence of the opinion in any way you want, but understand the Realpolitik. On the heels of filibuster reform failure one senator can now potentially shut down big chunks of government. "Bypassing advice and consent" was an inevitable by-product of filibuster abuse. Now, if someone doesn't do something fast, we have ourselves a bona fide Roman Republic moment. (Remind me, who are the radicals?)

Posted by: Michael Duff | Jan 26, 2013 6:30:40 AM

It is fascinating that so many of the commenters are offering apocalyptic predictions in lieu of holding the current President to his rhetoric to "work with" the Republicans. This irony is that, had he any interest in doing so over empowering labor unions, it likely wouldn't have come to this. Of course, his agenda is at odds with any respect for the minority party (well, majority in the House), and he has expressed little interest in tempering his far-Left ideology to "transform America."

And, of course, the ironies are delicious. Oh, those wascally Webpublicans have dared to block the heretofore common understanding of the recess appointment power (and I confess that I'm somewhat surprised that the decision goes as far as it does)? By daring to use the same procedural tactic created and employed by Harry Reid and the Democrats during the last two years of the Bush Administration? How dare they?!?! And I'm suspecting that none of those bemoaning this decision were in high dudgeon about "eviscerat[ing] the President's power to make recess appointments" then.

If sustained, this may be the most important decision regarding presidential power since Youngstown Sheet & Tube v. Sawyer. Those who complained about an "imperial Presidency" when the President was someone they loathed should be celebrating. That they are not simply demonstrates that it all depends upon whose ox is being gored. And right now, it's theirs.

Posted by: James Young | Jan 26, 2013 12:21:31 PM

James -- Do you think that there is a reasonable basis for blocking an up-or-down on Sharon Block or Richard Griffin?

Posted by: H. Blankenhorn | Jan 26, 2013 4:52:47 PM


Posted by: James Young | Jan 27, 2013 12:58:22 PM

Well, let's hear it.

Posted by: H. Blankenhorn | Jan 27, 2013 5:49:57 PM

My opinion is irrelevant to the constitutional issues of this case. It is also not (necessarily) relevant to the reasons why Senators oppose them. Unless you're trying to change the subject, why would you care?

Posted by: James Young | Jan 28, 2013 2:13:56 PM

I didn't change the subject, James. I posed a question in response to your comment that we might have avoided this crisis if only the President had worked with Republicans rather than seeking to empower Unions. Really? More than a year ago, the President nominated a package of nominees that included Block and Griffin to avoid the possibility of shutting the NLRB down for any significant period. As I understand it, the Senate Republicans blocked that package, with Lindsey Graham, upset about the Boeing case, vowing to block ANY nominee to the Board. It seems like one party is intent on shuttering the NLRB regardless of the qualifications of particular nominees. I was open to the possibility of an alternate explanation and thought you might have some insight.
Please, feel free to continue discussing the constitutionality of the recess appointments.

Posted by: H. Blankenhorn | Jan 30, 2013 6:07:11 AM

Obama = "far left ideology" = la-la land.

Posted by: Michael Duff | Jan 30, 2013 9:32:45 AM

Michael, I hardly expect someone who shares that far-Left ideology to 'fess up to it, particularly when he has implicitly deemed three judges of the second most important court in the land "radical."

Posted by: James Young | Feb 1, 2013 12:28:53 PM

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