By Steven M. Swirsky, Adam C. Abrahms, and D. Martin Stanberry
With an eye toward next term, the Supreme Court announced on Monday, June 24th, that it had granted the National Labor Relations Board’s (“NLRB”) petition for certiorari in Noel Canning v. NLRB. This news all but ensures that America’s highest court will determine not only the fate of President Obama’s recess appointments to the Board, but also the extent of a president’s Constitutional power to appoint individuals to various federal agencies, departments and courts without the advice and consent of the Senate.
As we explained at the time Noel Canning was decided, the D.C. Circuit Court of Appeals’ ruling invalidated three of President Obama recess appointments to the NLRB, thereby leaving it without a quorum (3 validly appointed members) to conduct elections, decide unfair labor practice charges, and perform other functions.
Interestingly, in addition to the issues raised in the Board’s petition, the Court has instructed the parties to brief whether the president may exercise the Constitution’s recess-appointment power when the Senate convenes every three days in pro forma sessions (i.e., whether appointments made by the president during short sessions of the Senate where business is not actually conducted, but a recess has also not technically occurred).
By agreeing to decide the case, the Justices will have to grapple with, among other things, the intent of the Founding Fathers, how recess appointments were utilized at the time the Constitution was drafted, what the language of the recess-appointment clause actually means, and whether deferral to the past practice of making intra-session recess appointments by presidents from both sides of the aisle (all while under the watchful eye of Congress) is appropriate.
In the interim, we should expect the NLRB to continue to operate as usual (as they have brazenly stated that Noel Canning does not impact their ability to operate) and for Congress to continue its efforts to prevent the NLRB from performing that business until a valid quorum is appointed; a result that would occur if the Supreme Court invalidates Noel Canning, or else three of President Obama’s five pending nominations to the NLRB are approved upon the advice and consent of the Senate.
Even before the Supreme Court will have the opportunity to hear the case, NLRB Chairman Mark Pearce’s Senate-approved term will expire in August. The expiration of his term will leave the Board without a three-member quorum of either Senate approved or recess appointed members. Senate approval of three of the five nominees prior to the Court’s review would resolve any question about the Board’s prospective authority to act, that alone however may not affect the High Court’s authority to review Noel Canning.