Supreme Court delivers blow to Obama on NLRB appointments, now Congress must act

Thursday, the U.S. Supreme Court’s decision in National Labor Relations Board vs. Noel Canning put the brakes on one of President Obama’s most egregious examples of overreach.

The Court decided that the president’s January 2012 installation of three members to the National Labor Relations Board (NLRB) while proclaiming the U.S. Senate to be in “recess” was an unconstitutional usurpation of the Senate’s advice and consent duties. Under our Constitution, the president may only unilaterally install persons into positions requiring Senate confirmation when the Senate is actually in recess. As the Court held, in this instance, the Senate was not actually in recess and the appointments were invalid.


These members of the NLRB serve in positions that require Senate confirmation before they may assume their posts– confirmation the Senate had declined to give to the particular nominees put forward by the president. As a result, the Court’s invalidation of these “recess” appointments left the Board without a quorum to make decisions over an extended period of time.

If the Supreme Court had decided the case differently, the consequences for our system of limited government with its constitutionally mandated checks and balances would have been disastrous, sending a message that we allow presidents to bypass the Senate and unilaterally install appointees, including federal judges, any time the president deems the Senate “unavailable,” such as over lunch.

With the question of when a recess occurs now settled, the NLRB will be forced to reevaluate decisions it made during the period for which it had no legal quorum. As a result, the Board will likely have less time over the next couple years to interfere in the workings of our economy, and this is a good thing.

We’ve been down this road before as this is not the first time that the NLRB has attempted to act without constitutionally confirmed members.

In 2010, the Court in New Process Steel held the NLRB’s attempt to operate without a quorum was invalid. This forced the NLRB to reconsider many of the nearly 600 decisions it had made while operating without a quorum.

The NLRB’s actions have been problematic for America’s job creators for too long. The Board, under the National Labor Relations Act, has the power to adjudicate “unfair labor practices,” acting as a type of judiciary for handling issues between employers and labor unions. The NLRB’s General Counsel investigates and prosecutes cases before the Board, while at the same time acting as the Board’s lawyer in other contexts.

In recent years, when they aren’t harassing employers at the behest of labor unions over where they locate their businesses (like it did when Boeing decided to expand a product line in South Carolina), the Board has attempted to micro-manage things like the social media policies and handbooks that employers use.

Even more troublesome, the NLRB has also worked to change the rules governing how employees choose or decline union representation, making it easier for unions to win unionization elections.

The Noel Canning decision presents an opportunity to highlight partisan leanings within the NLRB that create uncertainty for employers. One way to limit the harm that they can inflict would be to restructure its functions so that it no longer acts as a quasi-judiciary.

The Protecting American Jobs Act would move the adjudicatory functions of the NLRB to the U.S. courts and take away the Board’s power to prosecute unfair labor practices.

Like most disputes between private parties, these would be litigated by the parties themselves without the “thumb on the scale” weight a federal agency brings when it enters adjudicatory proceedings. No longer would short-term, agenda-driven political appointees be deciding cases.Rather, they would be handled by federal judges who have lifetime tenure and are not concerned with pleasing the president’s political party in order to get reappointed to their positions. This should not be a partisan issue, as Democrats would feel the same way if we had a Republican president.

Making this change would insulate these cases from today’s and tomorrow’s political pressures, freeing the tribunal to apply the law as written by Congress, instead of using the application of law as a means to achieve a desired result.

Congress should pass the Protecting American Jobs Act and put the NLRB’s adjudicatory functions back into the U.S. courts where they belong.