Court rules Obama NLRB appointments unconstitutional; breaking it down, Utah senators react

ST. GEORGE – A U.S. Court of Appeals last week observed that it is ultimately the people’s rights that suffer when one branch encroaches on another. Such was the conflict brought before it in the D.C. Circuit when the National Labor Relations Board upheld a collective bargaining agreement involving Noel Canning, a bottler and distributor of Pepsi-cola products.

The problem wasn’t with the bargaining agreement, which the Court of Appeal affirmed was reached, but with the order of enforcement. In short, the respondent NLRB, which issued an order enforcing the agreement with the union, included three Obama appointees who received their appointments to the Board without Senate advice or consent during a period that President Obama claimed was a qualifying recess under the Recess Appointment Clause of the Constitution.

The Court of Appeals saw differently, invalidating the three from seats on the board. And without the three on the board, there was no quorum and with no quorum there was no valid enforcement order.

The court’s analysis and holdings on the Constitutional clauses speak to greater matters than just whether a distributor of soda pop is bound to a union bargaining agreement, the effects of the rulings and reactions to them promise to be plenty and far-reaching.

Breakdown of key issues in the case

On Jan. 4, 2012, Obama appointed three members to the NLRB, for seats previously vacated, implementing the Recess Appointments Clause of the Constitution, which is an exception to the Appointments Clause of the Constitution.

At the time of the appointments in question, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The Court held that this was not a recess for purposes of implementation of the Recess Appointments Clause, it was rather an intrasession period, not an intersession period to which the Recess Appointments Clause applies.

The Appointments Clause both obliges and empowers the president to appoint officers of the United States “by and with the Advice and Consent of the Senate.”

The Recess Appointments Clause empowers the president 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.”

The court in this case undertook to define terms, “the recess” and “happen,” both of which serve to prescribe the limits of the executive authority to make appointments without Senatorial advice and consent.

The potentially far-reaching holdings

The Appellate Court held that “the Recess” characterized by the Framers was specific to an intersession Senate recess and not just any adjournment of the Senate; it noted that otherwise, for example, the Senate’s adjournment for lunch could be construed a recess and provide undue opportunity to the president.

It also held that “happen” characterized by the Framers was intended to mean a vacancy that arises during the recess and not to just any vacancy that “happens to exist” during the recess; it noted that otherwise, for example, a president could wait out an existing vacancy until a recess occurred allowing executive appointment and then appoint at will without the counter-balance of Senatorial advise and consent.

On these analyses and holdings, the Noel Canning case failed to meet the Constitutional empowerment and Obama’s appointments were therefore found to be invalid.

According to dicta in the decision, “Whatever the precise number of putative intrasession recess appointments before 1947, it is well established that for at least 80 years after the ratification of the Constitution, no President attempted such an appointment, and for decades thereafter, such appointments were exceedingly rare.”

Purpose of the Appointments Clauses

The court in Noel Canning summed up the purpose of the interpreted clauses:

“The Senate’s desires do not determine the Constitution’s meaning. The Constitution’s separation of powers features, of which the Appointments Clause is one, do not simply protect one branch from another. (Citations omitted.) These structural provisions serve to protect the people, for it is ultimately the people’s rights that suffer when one branch encroaches on another.

Reaction from the White House

In a White House press conference on Friday, White House Press Secretary Jay Carney said that the ruling was specific to the case itself and does not affect Richard Cordray, head of the Consumer Financial Protection Bureau (also appointed by Obama in January 2012, as were the three now debunked NRLB board members) and does not affect the functions of the NLRB. Carney said that the Administration strongly disagrees with the decision and that it counters 150 years of precedent.

But the court’s decision plainly disagrees with the press secretary’s characterization of the ruling as an isolated case with specific application, and it contains history of the rare implementation of the Recess Appointments Clause.

On the general and nonspecific holding intended by the court, it stated in its decision:

“In light of the extensive evidence that the original public meaning of ‘happen’ was ‘arise,’ we hold that the President may only make recess appointments to fill vacancies that arise during the recess.”

In the very next paragraph, the court applied its holding to the specific case of Noel Canning: “Applying this rule to the case before us, we further hold that the relevant vacancies did not arise during the intersession recess of the Senate ….”

Holding first, application second; the court articulated the scope of its decision in its opening:

“At its inception, this appears to be a routine review of a decision … over which we have jurisdiction. … While the posture of the petition is routine, as it developed, our review is not. In its brief before us, Noel Canning … questions the authority of the Board to issue the order on two constitutional grounds. … if petitioner is correct in either of these assertions, then the order under review is void.” (Emphasis added.)

The court also defined its purpose:

“… ultimately it is our role to discern the authoritative meaning of the supreme law. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court made clear that the courts must make the same determination if the executive has acted contrary to the Constitution. (Citation omitted) That is the case here, and we must strike down the unconstitutional act.

Reaction from Utah Senators

Both of Utah’s senators expressed pleasure with the decision.

Hatch spearheaded a letter in December 2011, signed by every Senate Republican, which called on Obama to not recess appoint nominees to NLRB.

Both Hatch and Lee joined as amici curiae, or friends of the court, in a  brief offered by 42 senators in the case, arguing that these appointments were unconstitutional.

Sen. Mike Lee issued the following statement:

“I am pleased that after careful review a federal court of appeals concluded that President Obama’s so-called ‘recess’ appointments were indeed unconstitutional. When President Obama bypassed the Senate and unilaterally made key appointments at a time the Senate considered itself in session, he ignored the plain text of the Constitution and endangered the checks and balances essential to our nation’s system of government accountability. As the D.C. Circuit rightly concluded, ‘Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.’

“Over the course of the last year, I have spoken out against these unprecedented and unconstitutional actions in numerous settings, including in meetings of the Senate Judiciary Committee, on the floor of the U.S. Senate, in a hearing before the House Committee on Oversight and Government Reform, and in countless interviews in the press. In protest of these unconstitutional appointments, I voted against President Obama’s judicial and executive appointments. Today’s decision represents vindication of the principled stand I have taken against this President’s disregard of our nation’s Constitution.

“The court’s ruling today is a sober reminder of how far detached this administration has become from our constitutional heritage and the rule of law.  By failing to follow the Constitution’s specified procedure for appointing executive officials, the President has created chaos and confusion for the business community, which has been left uncertain as to the validity of the many rules and regulations promulgated by officers that were not appointed according to the Constitution’s requirements.”

Sen. Orrin Hatch issued the following statement:

“Today’s ruling reaffirms that the Constitution is above political party or agenda, despite what the Obama Administration seems to think. This wasn’t an activist decision or legislating from the bench. This was a Court holding what the Constitution says – that a President may make a recess appointment only if the vacancy he would fill and the appointment occur during the same intersession recess. With this ruling, the DC Circuit has soundly rejected the Obama Administration’s flimsy interpretation of the law, and will go a long way toward restoring the constitutional separation of powers.”


Decision: Noel Canning v NLRB, Appellate Court Decision

Friends-of-the-Court Brief: Noel Canning v NLRB (CADC No 12-1115) – Amicus Brief for Sen McConnell et al

The Senators’ letter to Obama December 19, 2011: 12.19.11 Letter to POTUS re NLRB Nominees

Email: [email protected]

Twitter: @JoyceKuzmanic

Copyright St. George News, LLC, 2013, all rights reserved.

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  • michael west January 28, 2013 at 4:49 pm

    An informative analysis. thanks..

    ..but why stop at American history up until 1947?

    As the President’s spokesman rightly points out “We respectfully but strongly disagree with the rulings,” Jay Carney said at a briefing. “There have been, according to the Congressional Research Service, something like 280-plus intra-session recess appointments by … Democratic and Republican administrations dating back to 1867.”

    Both parties have used this, Obama fewer than others despite having everybody but his dog walker blocked by malicious Republicans. When he can’t even get lower court judges approved the whole system backs up and only criminals benefit… and their crooked lawyers?

  • michael west January 28, 2013 at 5:49 pm

    ..from Wikipedia… the last line puts it all in perspective.

    “Presidents since George Washington have made recess appointments. Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. Because of Rutledge’s political views and occasional mental illness, however, the Senate rejected his nomination, and Rutledge subsequently attempted suicide and then resigned.

    New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session. President Eisenhower, in a recess appointment, designated Charles W. Yost as United States ambassador to Syria.[7] Eisenhower made two other recess appointments, Chief Justice Earl Warren and Potter Stewart.

    George H. W. Bush appointed Lawrence Eagleburger Secretary of State during a recess in 1992; Eagleburger, as Deputy Secretary of State, had in effect filled that role after James Baker resigned.

    According to the Congressional Research Service, President Ronald Reagan made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of January 5, 2012, President Barack Obama had made only 32 recess appointments.[8]”

    • Avatar photo Joyce Kuzmanic January 28, 2013 at 7:11 pm

      Mr. West, if I may direct you to the court’s opinion, it is included as an attachment at the bottom of the report. The court did not take issue with or appraise the Constitutionality of recess appointments, per se; it held that President Obama’s appointments in this case during intrasession did not meet the criteria for recess appointments and were therefore struck down as unConstitutional. As he made another appointment during that period, the issue of its reach beyond the instant case was raised before the White House Press Secretary who took a defensive stance against the court’s ruling.
      Joyce Kuzmanic

  • Rocky Russell January 28, 2013 at 8:51 pm

    Let’s just hope our senators are as diligent when the next Republican holds the office. It never ceases to amaze me how things become an issue when the opposing party is in power.

  • michael west January 28, 2013 at 9:10 pm

    Ms Kuzmanic, you are entirely right.

    However I wish to point out that what is good for the goose is also good for the elephant. Right Wing media is currently howling about Obama’s war on the Constitution, touting the current case as a prime example, while willfully ignoring past numerous usage by other Presidents, other Presidents who have far surpassed Mr. Obama.

    Recess appointments are neither new nor a sudden assault on the Constitution. But for some strange(!) reason they are suddenly being examined as if they were.

    • Dsull January 28, 2013 at 11:10 pm

      The problem is that he used recess appointments when the senate was not in recess. The appointments he made while they were in recess still stand.

  • michael west January 29, 2013 at 12:02 am

    Dsull makes a good point. However it’s incomplete, because we have no idea how many of the, for example, last three Republican presidents’ recess appointments were similar to Obama’s disqualified ones. After all, the number for the three is over 500!

    Were there zero? ..unlikely.. 5 or 10? ..or more?

  • Brock January 29, 2013 at 12:50 am

    This is funny, several supreme court justice openly appose the courts decision. Leaving one republican senator in the senate while the rest of the senate is on break does not count as the senate being in session. Sorry for all those who got their hopes up about this but you’re wrong the appointments were legal and the republican party looks stupid because of this. I don’t live in Republican, I don’t live in Democrat I live in America. Its time to get over our differences and work as a nation to make the world a better place.

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