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Recess Appointments of NLRB Board Members Ruled Invalid by Federal Court

January 28, 2013
By Larry Cary, Esq.

Ability of NLRB to Function Called into Serious Question.

Historic Constitutional Balance of Appointment Power between the President and the U.S. Senate Threatened. 

On January 25, 2013, a three Judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, the second most important federal court in the Nation, issued a decision in a case called Canning v. N.L.R.B, which calls into question the ability of the NLRB to function because it renders suspect every decision of the NLRB for the past year and any future decisions by the Board until the decision is hopefully reversed by the Supreme Court. 

If allowed to stand, the decision goes much further than that because it rewrites the balance of power between the President of the United States and the United States Senate concerning the ability of the President to appoint senior federal officials when the Senate is not in session. 

While the Constitution contemplates that senior federal appointments by the President must be confirmed with the Advice and Consent of the Senate, the Constitution also provides that the President has the authority to “fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”   These so-called “Recess Appointments” are temporary; they expire at the end of the Senate’s next session.  And they have been used by many Presidents of both parties to fill vacancies in the executive and judicial branches of the US government.

At issue in the case was President Obama’s January 4, 2012, appointment of three people to be members of the National Labor Relations Board.  At that time the Senate was operating pursuant to a unanimous consent agreement providing that the Senate would only meet in pro forma session every three business days from December 20, 2011, through January 23, 2012, during which time no business would be conducted.  In other words, the Senators were on a winter vacation, the Senate was closed for business but technically remained open during this month.

The House of Representatives, which is dominated by the Republicans and under the sway of the radical right wing Tea Party Republicans, refused to allow the Senate to go out of session because it wanted to block the President’s power to make recess appointments.  The Constitution provides that neither house of the Congress may adjourn for more than three days without the consent of the other body.  If there is a disagreement between the two bodies about the date of adjournment, the President has the authority to adjourn the Congress, but no President has ever used this power.

At the January 3, 2012, pro forma session, in accordance with the requirements of the 20th amendment to the Constitution, the Senate acted to have the second session of the 112th Congress convene on January 4, 2012. On January 4 the Senate came into session and adjourned one minute later. 

These dates are significant, because on the day that President Obama made his appointments to the Labor Board, the Senate was technically in session if only for one minute.  One might think that President Obama waited a day too late to take make his appointments, but under the interpretation of the Constitution made by the three judges in Cannon v. N.L.R.B. the President never had any authority to make these appointments.  The court ruled that (1) the Constitution gives the President power to only make appointments between sessions of the Congress, (2) the Senate never went out of session until January 3 because of the continuing resolution to hold pro forma sessions with one senator present and no business being conducted, and then began its new session on January 4 (3) the only vacancies that can be filled by a recess appointment during a recess are vacancies that come into existence during that recess.  In other words, the President cannot use a recess appointment to fill a vacancy that arises while the Senate is in session and if a vacancy arises during a break between sessions it must be filled by a recess appointment during that recess.  To wait is to lose the right to make a recess appointment.  None of President Obama’s appointments would have satisfied these conditions had they been made the day before.

 With regard to the NLRB, Cannon v. N.L.R.B. invalidated the decision of the Board requiring the employer to sign the negotiated CBA contending that the Board did not have jurisdiction to order this relief when it lacked a sufficient number of members to constitute a quorum for doing business. (The National Labor Relations Act requires that the Board have three members to make a decision and without the three recess appointments it has two few members to do business). This decision calls into question the legal validity of every decision issued since January 4, 2012, by the Labor Board and all future decisions until, hopefully, the Supreme Court acts to overturn the decision.

Because the National Labor Relations Act gives an “aggrieved party” the right to file an appeal from a Board decision in either the District of Columbia Circuit Court of Appeals or the Appeals Court having jurisdiction over the location where the unfair labor practice was committed, every litigant losing before the Board can file its appeal at the DC Circuit Court and now have the Board’s decision automatically vacated.  Counsel for unions wishing to enforce a Board decision might be advised to ask for relief from the Board which is not granted in order for the Union to be an “aggrieved party” entitled to file an appeal in a local Circuit Court where the unfair labor practice was committed.

The decision in Cannon v. N.L.R.B. is at odds with history and a 2004 decision of the 11th Circuit Court of Appeals in a case called Evans v. Stephens.  There, the 11th Circuit held that the President has the authority to make recess appointments during extended intra-session breaks (breaks within a session) as well as during inter-session breaks, that is to day the recess between sessions of Congress.  Under Evans, President Obama’s authority to appoint the three members of the Board likely would have been upheld because the pro forma ruse used to keep the Senate in session likely would not have been found to inhibit his appointment power.

The question of whether the Senate is in recess for purposes of the Recess Appointments Clause has been long answered by looking at the purpose of the Clause not the technical distinction of what the Senate says it is doing.  This view was well articulated in 1921 by President Warren G. Harding’s Attorney General, Harry M. Daugherty, who wrote that recess appointments can be made if they are long enough to prevent the President from communicating effectively with the Senate or the Senate being able to effectively participate in consenting to the appointment.  Under this view, it makes no difference if the recess is between sessions of the Congress or whether the recess is a temporary adjournment of a session, or, as the case here, the Senate adjourns for an extended period of time to only come into session every three days for pro forma sessions with one senator and no business being conducted, so long as the duration of the adjournment is sufficient to trigger an inability of the Senate to give Advice and Consent.

While there is no clear line of demarcation under this view between when a temporary intra-session adjournment is sufficient or not to trigger the power to make a recess appointment, history shows that Presidents from both political parties have acted to make recess appointments when the Senate was adjourned temporarily for relatively short periods of time.  Obama made three such appointments during a twelve-day recess.  President George W. Bush made 29 appointments during recess periods that ranged from eleven to fourteen days in duration.  President George H. W. Bush made fourteen appointments during a thirteen-day recess.  President Ronald Reagan made two appointments during a fourteen-day recess.

Intra-session appointments have a long history.  President Andrew Johnson is believed to have made the first intra-session recess appointment in 1867.  It is thought that intra-session appointments began after the Civil War because intra-session breaks taken by the Senate before then were never longer than 15 days.  Indeed, from the founding of the Nation in 1789 until the Civil War the Senate took only five intra-session recesses and they ranged in duration from only five to twelve days.  On the other hand, the Senate did not stay in session as long as it now does.  In the early years after the Constitution was adopted intersession recesses regularly lasted six to nine months.

The three judge panel in Cannon, Chief Judge David B. Sentelle, Judge Karen LaCraft Henderson and Judge Thomas B. Griffith, collectively rest their decision to overturn more than a century of practice with regards to the Recess Appointments Clause by “look[ing] to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution.”  (Emphasis added.) This approach lead the panel to view “[t]he interpretation of the Clause in the years immediately following the Constitution’s ratification [as] the most instructive historical analysis in discerning the original meaning.  Indeed, such early interpretation is a ‘critical tool of constitutional interpretation’ because it reflects the “public understanding” of the text “in the period after its … ratification.”” (Emphasis added.)

As a result, the three judge panel disregarded the contradictory interpretation of the Recess Appointments Clause authoritatively articulated over 190 years ago by President James Monroe’s Attorney General, William Wirt, who wrote in 1823 that “whensoever a vacancy shall exist which the public interests require to be immediately filled, and in filling which, the advice and consent of the Senate cannot be immediately asked, because of their recess, the President shall have the power of filling it by an appointment” because “[t]he substantial purpose of the constitution was to keep these offices filled; and powers adequate to this purpose were intended to be conveyed.”  Instead, the judicial panel disregarded the historical evidence of intra-session breaks by the Senate rarely occurring during the early years of the Nation (only five in the first 87 years of our history), and viewed the early practice of the Presidents in making recess appointments only during the six to nine month-long yearly inter-session breaks as the evidence of the early understanding of the Constitution and “more probative of its original meaning than anything to be drawn from administrations of more recent vintage.”  (Emphasis added.)  In so doing, the panel relied on the numerous references to “natural meaning” found in the 2008 decision by the Supreme Court in District of Columbia v. Heller, which held that the Second Amendment limited federal authority to enact gun control laws.

“Natural meaning,” “original meaning” and “public understanding” are all phrases reflecting the judicial theory of “Originalism” made famous by Judge Robert H. Bork, who served on the District of Columbia Circuit Court of Appeals before his nomination by President Reagan to the Supreme Court was rebuffed by the Senate. (Before joining the bench, Judge Bork was infamous for having carried-out the Saturday Night Massacre on October 20, 1973, when President Richard Nixon unlawfully ordered the firing of Watergate Special Prosecutor Archibald Cox after Cox asked that the Oval Office Tape Recordings be produced; these tapes when produced formed much of the evidence supporting an effort to impeach Nixon and forced his resignation.)  Adherents of the theory of Originalism are required under their view to determine the original intent of the drafters of the Constitution and to apply that original intent to the issues of the day. It does not matter that the world has moved on in the last 225 years or that the Constitution has been interpreted differently than originally intended during this two centuries.

Originalism is generally viewed as a judicial theory espoused by conservative members of the judiciary and the legal profession.  The three judges on the Cannon court were all appointed by Republican Presidents, but perhaps more significantly, two of them have been publicly identified as members or associates of the Federalist Society, which describes itself as “a conservative and libertarian intellectual network that extends to all levels of the legal community.”  Indeed, four of the five Justices in the majority in Heller – Chief Justice John G. Roberts, Justice Samuel Alito, Justice Antonin Scalia and Justice Clarence Thomas – have also been publicly identified as having been members or associates of the Federalist Society.

 Founded in the early 1980s by law students at Harvard, Yale and the University of Chicago, today only about 30,000 of the 1.2 million licensed attorneys in the United States belong to the Federalist Society.  This would make the Federalist Society a fringe organization if it didn’t have many prominent attorneys and jurists as members.   Judge Bork and Justice Scalia are both considered co-founders of the Society, and Justice Scalia also served as a faculty advisor to the student group at the University of Chicago in the Society’s early years.  Other co-founders include Edwin Meese, who sits on the Society’s Board of Directors.  Meese, who was the Attorney General under President Reagan, served as California Governor Reagan’s chief of staff.  In the later position he is credited for having escalated the crackdown on May 15, 1969, of the student demonstrators in the People’s Park in Berkeley California; hundreds of sheriffs were sent-in firing tear gas and shotguns which killed one student, blinded another person and sent 128 people to the hospital for head trauma, shotgun wounds and other serious injuries.

Theodore Olson, another co-founder of the Society, served as the United States Solicitor General under President George W. Bush and Assistant Attorney General for the Office of Legal Counsel to President Reagan.  After the U.S. House Judiciary Committee complained that Olson may have given false and misleading testimony before a House subcommittee investigating President Reagan’s order to the Administrator of the Environmental Protection Agency to not cooperate with document production demanded by Congress, a Special Prosecutor was appointed to investigate Olsen and two others.  Olsen refused to cooperate with a grand jury despite being subpoenaed; he contending this effort violated the Constitution’s requirements for the separation of powers between the executive and legislative branches.  In an 8 to 1 decision (Justice Scalia being the sole dissenter) the Supreme Court upheld the appointment of a special prosecutor and Olsen subsequently resigned his position with the government.

Another co-founder of the Society, David M. McIntosh, served as Special Assistant to the Attorney General and as Special Assistant to the President for Domestic Affairs under President Reagan.  He also served in the first Bush administration as an assistant to Vice President Dan Quayle.  As a member of the House from Indiana, McIntosh voted in 1999 to make it a federal crime to transport a minor across state lines for the purpose of enabling her to get an abortion.  That same year he also voted for banning gays in Washington D.C. from being able to adopt.  He also voted to increase criminal prosecution of juveniles, to make it harder to get a writ of Habeas Corpus in death penalty cases, and to limit rights under the Constitution to seek a federal appeal of a state’s death penalty.

Another co-founder of the Society, Peter Keisler, served in the Second Bush administration as the Principal Deputy Associate Attorney General and the Acting Associate Attorney General.  Keisler defended the Bush administration’s War On Terror and the creation of military tribunals in Guantanamo.  In Hamdan v. Rumsfeld, the Supreme Court ruled that the military commissions set up by the Bush administration to try detainees could not do so because it violated American military justice law and the Geneva Convention.  (Justices Scalia, Alito and Thomas dissented from the holding; Chief Justice Roberts did not participate as he recused himself for having ruled against the detainees in the case below while serving as a judge in the DC Circuit Court of Appeals.) 

Other notable members of the Federalist Society include Ken Starr, who served on the District of Columbia Circuit Court of Appeals after being nominated for the position by President Reagan.  Starr also served as the United States Solicitor General in the first Bush administration, but is best known for being the Watergate Special Prosecutor.  Starr’s five year investigation of President Bill Clinton culminated in the President’s impeachment and trial over his affair with Monica Lewinski.  The Federalist Society also counts among its members or supporters other prominent attorneys, U.S. Senators and other appointed and elected officials.   

The Federalist Society says it is “dedicated to reforming the current legal order. We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”  The Federalist Society’s president for 25 years is the son of a co-editor of the National Review, a conservative news magazine.  The Federalist Society has received substantial funding from the right wing billionaire brothers, Charles and David Koch.  Their charitable organizations have provided millions of dollars to fund the Federalist Society over the years. 

Trade Unionists may see the court’s decision in Canning v. N.L.R.B. as another bad judicial decision that will hurt labor.  It is that, but it is also much more.  The decision reflects the ascendancy of the legal philosophy of the right, which at its core is intended to restructure our government and roll back the gains made by workers and others since the New Deal of the 1930’s.  If the Federalist Society and its supporters prevail, in its stead we will have a new form of limited government that will allow big corporations to rule unchecked over the Nation.     

Larry Cary is a partner in the New York law firm of Cary Kane LLP and has represented unions for 30 years.

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