In the past week, in the political/legal news, we saw the Senate hearings on gun control and gun violence, Hillary Clinton’s last day as Secretary of State and Senate confirmation grilling of Chuck Hagel for Secretary of Defense. Rounding out the list was a federal court’s ruling that the recess appointments made by President Obama to the National Labor Relations Board last year were unconstitutional. The federal court’s opinion has thrown a curve ball at the Obama Administration.
During President Obama’s first term, the Republican Senators refused to approve President Obama’s nominations to the National Labor Relations Board (“NLRB”), the Consumer Financial Board Agency and others. As other presidents before President Obama have done, he chose to make appointments during the Senate recess to the NLRB. In doing so, President Obama assured that the board could conduct business with the required number of judges. Republican Senators took a stand against the appointments asserting that the Senate was not on recess—instead on a brief break.
The three judge panel, on the District of Columbia Court of Appeals, to hear the case was made up entirely of Republican judicial appointees, appointed by Ronald Regan. Needless to say, the federal court ruled that a recess occurs when the Senate adjourns after a two year session. The White House is reviewing its options on an appeal to the Supreme Court. The White House really must appeal this decision which goes against prior precedent on how recess appointments are made by prior Administrations. If the appointments are unconstitutional, it puts in jeopardy all of the decisions the Labor judges made during their “unconstitutional” sitting. Chaos would likely ensue on the effect of the cases already decided if the court’s decision is allowed to stand. No doubt that union and labor or worker favorable decision will be contested. The Board is still conducting business as usual.
The NLRB generally receives anywhere from 20,000 to 30,000 complaint a year from employees, employers and unions for unfair labor charges. Of those, only a small percentage end up in courts, according to the NLRB. Those complaints may involve some of the following:
“Common allegations against employers in complaints include threats, interrogations and unlawful disciplinary actions against employees for their union activity; promises of benefits to discourage unionization; and, in the context of collective bargaining relationships, refusals to provide information, refusals to bargain, and withdrawals of recognition. Common allegations against unions include failure to represent an employee and failure to bargain in good faith.”
In a similar case, Richard Cordray’s recess appointment to the Consumer Financial Board may also be on the chopping block or at least in jeopardy, if the federal court’s ruling is not appealed. Richard Cordray was appointed in similar fashion as the NLRB judges during a recess appointment. There is another federal case pending on Richard Cordray’s appointment last year. And President Obama has made it clear that Cordray is the person for the job.
In considering past recess appointments according to Congressional records, President Regan made 240; President George H.W. Bush made 77; President Clinton made 139; And President Barak Obama made 32 since January, 2012. President Eisenhower appointed two Supreme Court Justices via recess appointments—Justices Earl Warren and Potter Stewart. There is ample precedent for recess appointments under similar conditions and White House counsel asserts that the appointments were valid.