Symposium: Will the Supreme Court duck the recess appointments battle?

This week we are hosting an online symposium on National Labor Relations Board v. Noel Canning, in which the Court will consider the constitutionality of the president’s recess appointments to the NLRB.  Lyle summarized the issues in the case last week in a “Made simple” post.

The following contribution comes from Jeffrey Hirsch, a professor at the University of North Carolina School of Law.

When Noel Canning and other similar challenges to the National Labor Relations Board’s (NLRB or Board) recess appointments were pending, few people expected a decision as sweeping as what came out of the D.C. Circuit.  Rather than taking the more narrow and obvious issue at hand – the constitutionality of recess appointments made during pro forma sessions – the court held that recess appointments are valid only during intersession recesses and only for vacancies that arise during such recesses.  The result was a ruling that declared unconstitutional almost two hundred years of recess appointment practice.

I suspect that the Supreme Court will refuse to go that far, over the objections of some or all of the textualist Justices, who will likely find the issue too big a target to resist.  Yet, I also suspect that the Court will overturn the NLRB appointments.  Much of that prediction comes from the Court’s general hostility to the NLRB, as well as the more novel nature of such appointments.  But there also remains a decent chance that the Court will simply decline jurisdiction – a path that I think the Court would be wise to take.

At the outset, it is worth noting how this case came about.  In short, it is because the nomination process for the five-member NLRB is broken.  By tradition, a single Board member is to be appointed each year, as each current member’s five-year term expires (although renominating incumbents is not unusual).  Moreover, the overall composition of the NLRB is to have three members from the party that occupies the White House and two from the other party.  But the process has not looked like this for years.  Long ago, political tensions created a situation in which Board nominees typically were able to pass the Senate only as part of a package.  More recently, things have gotten worse as even the bundling process has failed and the NLRB frequently finds itself with fewer than five members.  This situation can become crippling because the NLRB has a three-member quorum, which some opponents have tried to exploit by blocking all nominations.  (It is not a coincidence that the only NLRB cases before the Supreme Court in over ten years involve the quorum requirement.)  Thus, as long as the current filibuster rules apply, NLRB opponents have had an easy way to threaten the agency’s power to issue decisions, leaving recess appointments as the only remaining option.  Accordingly, President Obama has made five recess appointments to the NLRB during his term in office, including the two at issue in Noel Canning, and may do so again shortly because the term of the only confirmed member is expiring in August.  The president also recently nominated a full slate of members, including two Republicans, but there has been no sign that a final vote in the Senate will occur.  Until that happens, the NLRB is operating under an existential cloud – it is issuing decisions with three members, but if the Supreme Court strikes down the recess appointments for two of them, all of those decisions will be vacated and the Board will not be able to issue future decisions without new members.

Although I am not optimistic that the Supreme Court will aid the NLRB and its future nominees, there are two ways it could do so.  The most likely option is to dismiss jurisdiction based on the political question doctrine.  The argument for this doctrine has merit, and it would not be surprising if the Court decides that the courts should not inject themselves into an issue that is as much political as anything else.  Indeed, as I discuss below, the Court should seriously consider using this doctrine to avoid injecting itself into a battle between two political parties.  If this comes to pass, it will be a significant win for the NLRB and other agencies, as it will maintain the president’s broad power to make recess appointments and ensure that agencies have the appointees needed to maintain operations.

The other possible win for the NLRB is far less likely, as it involves the Court holding that the NLRB recess appointments were valid even though they occurred during pro forma sessions.  Especially for a Court not typically predisposed to voting with the NLRB, the pro forma argument is probably too great a stretch; thus, a decision on the merits will likely result in an invalidation of the nominations.

One way in which the Court might strike down the NLRB nominations is a full approval of the D.C. Circuit’s opinion.  Although more probable than an approval of pro forma sessions appointments, I do not expect a majority of the Court to sign on to this outcome.  The D.C. Circuit’s opinion is so unnecessarily broad that it is hard to believe that any Justices other than the most committed of textualists will be willing to go that far.  And even the textualists may pause before making such broad pronouncements on a politically charged issue when far more narrow grounds for striking down the nominations are available.  However, if the Court adopted the D.C. Circuit’s opinion, it would be a momentous ruling.  The power of appointments would shift dramatically to the Senate, as the president would lose his power to make recess appointments in most circumstances.

There are several combinations of outcomes that could provide a narrower loss for the NLRB. The most likely, and narrowest, ground is a holding that pro forma sessions are not recesses.  But this could be combined with holdings that only intersession breaks count as recesses or that only vacancies that occur during a recess may be the subject of a recess appointment.  I suspect that the Court will limit itself to the pro forma issue, but it would be helpful to have more clarity on the other recurring issues.  Although the NLRB will lose under any of these scenarios, the Court’s decision whether to address more than just the pro forma sessions will have significant practical effects for the agency.

A Court opinion striking down only the pro forma appointments would vacate over eight hundred NLRB decisions; an opinion that also limited recess appointments to intersession recesses or vacancies that occur during a recess would likely vacate over three hundred additional decisions (because of an earlier, intrasession recess appointment).  This is not a crippling issue, as the NLRB can decide those cases again.  In fact, it has recent experience doing just that.  After the Court’s 2010 decision in New Process Steel v. NLRB struck down a two-member NLRB and vacated almost six hundred decisions, a newly populated Board was able to reconsider and redecide virtually all of those decisions within a year.  However, those cases were sufficiently straightforward that both a Democratic and Republican member had originally agreed on them.  The NLRB’s current cases involve many similarly straightforward matters, but also more controversial cases decided by all-Democratic panels that will take more time to reconsider, especially with increased Republican presence on the Board.

The more significant effect of the Court’s decision is on the NLRB’s future nominations.  For instance, if the Court strikes down the pro forma session appointments, but refuses to decide whether intrasession recess appointments are valid or whether vacancies must occur during a recess, it will put another cloud of uncertainty over the NLRB.  Given the current state of politics, it is extremely unlikely that Senate Republicans will permit a vote on new NLRB nominees, so new recess appointments during a more formal break will be needed to give the Board a quorum.  Once those appointments are made, losing parties will continue to attack Board decisions and, assuming the D.C. Circuit continues to follow Noel Canning, we will be back to where we are now – that is, an agency that continues to issues decisions but has no way of enforcing them in most instances.

Alternatively, if the Court strikes down either the use of intersession recess appointments or limits recess appointments to vacancies that occurred during the same recess, we could see major changes in the confirmation process.  In the short term, the president’s ability to appoint new members to the NLRB and other agencies would be largely controlled by Senate Republicans.  Yet such a decision could prompt the Senate Democrats, if it did not do so already, to adopt the “nuclear option” of eliminating the use of filibusters against agency appointees.  This possibility could turn a loss for the NLRB into a win for the president’s ability to appoint agency officials.  That scenario also should serve as a warning to the Supreme Court.  Justices who are not favorably disposed to the NLRB and other agencies should be aware that going too far could result in a backlash that actually increases the president’s power, rather diminishes it.  Of course, that this type of political calculation is so prominent provides a good reason for the Court to decline jurisdiction under the political question doctrine.

In the end, the near-term prospects for the two NLRB appointees and the NLRB appear to rest on the Court’s willingness to invoke jurisdiction.  Given the currently political uncertainty over nominations – the Senate Democrats are planning to bring the issue to a head around the time this symposium is to be published – it is unclear whether the Court will invoke the political question doctrine, saving the NLRB’s current decisions and allowing new recess appointments as needed.  Barring that outcome or a political resolution to the nominating process, the NLRB will most likely see itself with no members after Noel Canning is decided.  Although the NLRB has experienced periods in the past when it could not issue decisions, the increased political fighting over its nominees means that it could be faced with an unparalleled crisis.  Without any hope of new members in the near future, the NLRB could still run union elections and prosecute cases before administrative law judges, but would lack any means to issue final decisions.  This possibility is more serious for the NLRB than most other agencies because the Board makes the vast majority of its policy through decisions rather than rules.  Moreover, the NLRA lacks a private right of action, so if the NLRB indefinitely lacks a quorum the result would be a de facto deregulation of labor law.  This should be a concern for all private-sector employees because the NLRA is the statute that gives employees – even ones not represented by a union – the right to engage in concerted acts such as discussing pay, demanding safer work conditions, and engaging other attempts to improve their terms and conditions of work.  I doubt that the Supreme Court will be too concerned with the possible harm to labor law, but it may be concerned that its decision could prompt the current Senate majority to pursue the nuclear option.  Therefore, if the nuclear option has not been triggered by the time the Court considers Noel Canning, it might be time to start putting more bets on the political question doctrine.