Vol. 77/No. 5      February 11, 2013

The decision not only overturned the appointments, but threatens to void the hundreds of NLRB decisions made since Jan. 4, 2012.

The ruling rejects the growing practice since the 1970s by presidents, including Ronald Reagan, William Clinton and George W. Bush, to unilaterally make such appointments when they have faced opposition to their nominations in Congress.

Obama took it further than any previous White House. Under Bush, Senate Democrats found a way to block some of his recess appointments. During holidays and other breaks, the party leadership would have a senator or two gavel a session open for a few minutes every three days to keep Bush from making any appointments.

Under Obama, Republicans returned the favor and continued this practice. Obama decided he had the power to ignore what they were doing, announced he considered the Senate to be in recess, and made his NLRB appointments anyway.

The president was claiming “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,” Chief Judge David Sentelle wrote in a unanimous decision.

The ruling was attacked by the White House, which called it “novel and unprecedented.”

In a Jan. 25 statement, AFL-CIO President Richard Trumka called the decision “nothing less than shocking” and said the court interpreted the Constitution in a way that would deprive presidents of a “critical tool … to keep agencies functioning and make the government work.”

The case was filed by Noel Canning, a Washington state Pepsi-Cola bottling company, against a labor board ruling in favor of the union at the plant, Teamsters Local 760. The company argued the ruling should be thrown out because the three Obama appointments were unconstitutional and therefore the board acted without a legitimate quorum.

The court agreed.

Besides calling into question all the board’s decisions over the last year, the court ruling could have broader ramifications. “The decision may affect New York, too,” the New York Post editorialized Jan. 26. “The NLRB is expected to rule on the legality of the city school-bus strike next week, but its decisions appear to lack teeth now.”

The ruling could also affect the actions of other presidential “recess” appointments, including the decisions of criminal court judges sending people to prison.

“You know there are people sitting in prisons around the country who will become very excited when they learn of this ruling,” John Elwood, who handled “recess” appointments for George W. Bush’s Justice Department, told the Jan. 26 New York Times.

Based on the clear wording of the Recess Clause of the U.S. Constitution, the court held that no president has the right to make his own appointments, without agreement of the Senate, except during the recess between sessions, and only for “Vacancies that may happen during the Recess.”

When the Constitution was written, congressional sessions were much shorter and the recesses between them lasted many months. For this reason, the authors of the Constitution included the Recess Clause to allow the president to fill appointments that might become open during long periods when the Senate was unable to act.

“The manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power,” the court quoted from a 1991 Supreme Court decision, “because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.”

The White House is expected to appeal the ruling to the Supreme Court.
 
 
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