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Republicans Call for NLRB to Shut Down in Wake of Court Ruling on Appointees

Senate Republicans won an important victory over President Barack Obama on Friday, when a federal appeals court ruled that his appointments to the National Labor Relations Board a year ago were unconstitutional. GOP lawmakers quickly responded by calling for the appointees to resign and for the board to shut down.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled 3-0 that Obama overstepped his constitutional authority when he made three appointments to the NLRB while the Senate was on a holiday break in January 2012.

The Constitution permits the president to make appointments while the Senate stands in recess. During the period in question, however, the Senate was meeting in a series of pro-forma sessions — which Republicans had insisted on specifically to prevent Obama from making appointments — and thus was not technically in recess, Chief Judge David B. Sentelle wrote for the majority.

“We hold that ‘the recess’ is limited to intersession recesses,” Sentelle wrote, adding that “the appointments structure would have been turned upside down if the president could make appointments any time the Senate so much as broke for lunch.”

The White House rejected the court ruling on Friday.

“The decision is novel and unprecedented,” White House spokesman Jay Carney said. “It contradicts 150 years of practice by Democratic and Republican administrations.” According to the Congressional Research Service, he said, presidents have made more than 280 recess appointments since 1867.

The court case was brought by Noel Canning, a small bottling company in Washington state, that sued the NLRB. The labor board had determined that the company had not bargained in good faith with the union representing its employees. But Noel Canning countered that the NLRB’s ruling should not be upheld because the agency’s three recess appointees were not valid members. Last September, 42 Senate Republicans filed an amicus brief in the case on behalf of Noel Canning.

Republicans in both chambers praised Friday’s court decision. Sen. Lamar Alexander, R-Tenn., and Rep. Darrell Issa, R-Calif., called for the resignation of the NLRB appointees in question.

“This judgment is proof that the administration defied the Constitution’s separation of powers and its concept of checks and balances, which are the guard against an imperial presidency,” Alexander, the new ranking member on the Senate Health, Education, Labor and Pensions Committee, said in a statement.

House Education and the Workforce Chairman John Kline, R-Minn., called for the board to “cease all activity until qualified nominees have been constitutionally appointed.”

But Democrats rejected those suggestions. Senate HELP Chairman Tom Harkin, D-Iowa, urged the board to continue operating “until or unless” the Supreme Court rules on the issue. He called Friday’s decision a “radical departure from precedent,” adding that throughout Obama’s presidency, Republicans have used partisan delay tactics and filibusters to prevent the confirmation of nominees.

“Republicans have made clear that they are willing to disrupt the basic functions of government to stop the NLRB from carrying out its congressionally mandated function to defend the rights of workers,” Harkin said.

Appeal Considered Likely

The administration is likely to appeal the ruling to the Supreme Court, potentially setting the stage for another high-profile court showdown between congressional Republicans and Obama. Last year, the justices sided with Obama and against the GOP in upholding the 2010 health care overhaul, and the court is currently at the center of another legal faceoff between the two sides, over the constitutionality of the 1996 Defense of Marriage Act.

Jay Sekulow, chief counsel at the American Center for Law and Justice, predicted that the administration would appeal.

“Ultimately, it’s going to the Supreme Court, and that could be very soon,” said Sekulow, the author of an amicus brief in the case on behalf of House Speaker John A. Boehner, R-Ohio, who sided with the bottling company and with Senate Republicans in the case. “I can’t conceive of why [the administration] would not try to do that.”

Noel Francisco, the partner at the law firm Jones Day who argued the case against the NLRB recess appointments, said he felt relatively confident about prevailing should the case go to the Supreme Court.

“I think we’ve got a very strong argument that will appeal both to the originalists on that court and to more conservative justices,” Francisco said on a conference call with reporters Friday. “[And] to the more liberal justices, that if you apply a more pragmatic test here, pragmatically, they don’t make any sense.”

“I can tell you that every decision that the NLRB issues with this board is under a legal cloud,” Francisco added.

For now, the D.C. Circuit’s ruling will stand, and there could be immediate effects on the operation of the labor board, said Paul M. Secunda, associate professor of law at Marquette University Law School in Milwaukee.

“It means that, in some sense, the Republicans can hold the NLRB hostage until the Democrats appoint people who are acceptable to them,” Secunda said.

“If the administration cannot get its nominees approved, the NLRB will, for all intents and purposes, not function. You might say that’s exactly what the Republicans want,” he added. “They see the Obama board as being too activist and too pro-union. So it might be to their advantage.”

Interest Groups Respond

Business groups lauded the decision.

“Small-business owners throughout the country have suffered under the unabashedly pro-union decisions handed down by the NLRB,” said Karen Harned, executive director of the Small Business Legal Center at the National Federation of Independent Business. “They deserve to be protected from unconstitutional acts that exacerbate the NLRB’s devolution from a neutral arbiter between labor and employers to a pro-union government agency.”

Meanwhile, the AFL-CIO called the ruling “radical” and “unprecedented” and said it is likely to be reversed.

“Today’s decision by a panel of Republican judges on the D.C. Circuit is nothing less than shocking,” said AFL-CIO President Richard Trumka. “In a radical and unprecedented decision, the court has interpreted the Constitution in a way that would deprive both Republican and Democratic presidents of a critical tool they have used hundreds of times over the years . . . to keep agencies functioning and make the government work.”

The ruling comes at a precarious time for the state of organized labor. Private-sector union membership, at 6.6 percent, is at its lowest point since 1919.

Potential CFPB Impact

The decision also could have consequences for the administration’s financial-regulatory agenda. On the same day that Obama made the NLRB appointments that were struck down Friday, he also installed Richard Cordray to serve as director of the Consumer Financial Protection Bureau. Cordray’s appointment has been challenged in a separate court case.

“This decision now casts serious doubt on whether the president’s ‘recess’ appointment of Richard Cordray to the Consumer Financial Protection Bureau . . . is constitutional,” said Senate Minority Leader Mitch McConnell, R-Ky.

Carney disputed that assertion at the White House. “The decision that was put forward today has to do with one case, one company, one court,” he said. “It has no bearing on Richard Cordray.”

The CFPB, established by the 2010 Dodd-Frank law (PL 111-203), has produced a slew of new regulations over the past year, including some to overhaul the mortgage market. If Cordray’s appointment is ultimately struck down as well, those rules might be in jeopardy.

Before Obama’s appointment of Cordray, Senate Republicans had vowed to block any nominee to lead the bureau, absent major structural changes — something Democrats rejected. On Thursday, Obama re-nominated Cordray to serve as director for a full five-year term. Currently, Cordray’s recess appointment runs out at year’s end.

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