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Tuesday, Jan 14, 2014, 1:40 pm

Political Implications of Noel Canning? The Supreme Court Doesn’t Want to Hear It

BY Moshe Marvit

Justice Stephen Breyer, a Clinton appointee, appeared skeptical that an NLRB shutdown would cause any major problems.   (Wikimedia Commons)

In the Supreme Court’s oral arguments on Monday, the justices made one thing abundantly clear: Though National Labor Relations Board (NLRB) v. Noel Canning concerns labor, they were not going to consider the effects on labor.

The case was appealed to the Supreme Court after the D.C. Circuit Court of Appeals invalidated President Obama’s January 2012 appointments to the NLRB, the body responsible for investigating and  determining U.S. labor-law violations. The appointments occurred while the Republican-controlled Senate was conducting no business, but was holding pro forma sessions—precisely in order to block Obama from making recess appointments. In a decision that surprised many, the D.C. Circuit held that Obama’s appointments did violate the recess clause in Article II of the Constitution. As a result, a cloud hung over the decisions of the Board until new members were confirmed in the summer of 2013, with many employers arguing that they were not bound by the opinions of an improperly constituted labor board.

However, the Supreme Court justices did not want to hear about that. Each time that an attorney from either side tried to steer the conversation toward the real-world consequences of the D.C. Circuit’s bizarre opinion, the justices interrupted. Instead, they wanted to discuss the historical and natural meanings of the words “happen,” “recess” and “session.” In taking turns describing how modern transportation has likely made the recess clause obsolete—“an historic relic,” in Justice Kagan’s words—they showed complete disinterest in the possible outcomes of revoking this important presidential power. Indeed, Justice Breyer repeatedly asked the Solicitor General Donald Verrilli, who was arguing on behalf of the government, “Why is this an important case?”

The Solicitor General endeavored to explain how the recess appointment clause has become a sort of “safety valve” between the branches of government that helps to relieve the pressure of one party’s intransigence. He warned that without it, the NLRB was “going to go dark” due to Senate’s refusal to fulfill its mandate to advise and consent on the President’s nominees.

Breyer’s response suggests that the Court sees its role as being pure of politics. He referenced the Supreme Court’s ruling in the 2010 New Process Steel case, which held that the NLRB did not have a quorum during the two years in which only two labor board members were confirmed by the Senate. Breyer said that although that ruling similarly invalidated hundreds of NLRB cases, everything worked out in the end:

Moreover, we’ve had an example of—where this court, for better or for worse, said that two members of the board is not a quorum, and we got some more members, they dealt with the problem. They ratified all those opinions, they dealt with it. It didn’t take them too much time.

His implication seems to be that, if the Supreme Court does uphold Noel Canning and the NLRB goes dark, “they”—Senate, the President, and the NLRB—will deal with it again, and everything will work out in short order. 

Breyer’s view of New Process Steel shows a remarkable misreading of history, however. First, the two-member labor board at issue only ruled on uncontroversial cases, making later ratification of their cases much easier. Second, and more important, rather than solve the dysfunctions in the appointment process to the labor board, New Process Steel directly led to the recess appointments at issue in Noel Canning

After New Process Steel, the only member confirmed by the Senate was Brian Hayes, a Republican appointee who later threatened to resign simply to rob the NLRB of its quorum. Realizing the increased power that New Process Steel gave them, Republican Senators proceeded to filibuster all of Obama’s nominees to the NLRB. That was them dealing with it.

In response to Republican intransigence and the specter of a defunct NLRB created by the Supreme Court in New Process Steel, President Obama made the controversial recess appointments at issue in Noel Canning. That was him dealing with it. The Court’s decision deepened the dysfunction in the political process; it did not solve it, as Justice Breyer indicated. If the Supreme Court effectively kills the recess appointment power, the NLRB may only exist in years where there is both a Democratic president and Senate.

Justice Breyer’s rewriting of the historical record, along with the general tenor of the oral arguments in Noel Canning, displayed a profound naïveté among the justices. They treated the 18th-century meaning of trivial terminology, such as “happens,” to have force and value, but discounted the political power and real-world consequences of their own 21st-century decisions. Noel Canning displayed how much Justice Scalia has revolutionized the Supreme Court’s self-image, from a political branch of government to a glorified arbiter of dictionaries.

It is impossible to predict how the Court will rule based on oral arguments. In this case, at least seven of the justices appeared skeptical of the government’s position. (Only Justice Ginsberg did not express skepticism; Justice Thomas was also likely skeptical, bring the count up to eight, but he famously refuses to speak at oral arguments). However, one can find in the arguments a sense of what the justices deem important. In Noel Canning, it is not the NLRB’s critical role in enforcing labor law, nor the likely political upheaval that would result from retiring the recess appointment power. 

Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

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