Stop! In the name of the Constitution.
On April 25 the National Labor Relations Board (NLRB) petitioned the Supreme Court to review a previous ruling on the Noel Canning vs. NLRB case. This past January, a 3-judge panel of the D.C. Court of Appeals ruled that NLRB board members—Sharon Block, Richard E. Griffin, and Terence E. Flynn—were unconstitutionally appointed by President Barack Obama back in January 2012.
When the recess appointments were ruled unconstitutional, there was much buzz about what that would mean for all of the NLRB’s decisions. So far, not much.
However, now that the NLRB has petitioned the highest court for review, there is some hope that the unconstitutionality of the recess appointments will receive the imprimatur of the Supreme Court and perhaps lead to actual consequences.
Both sides are eager for the Supreme Court to review the case, including the U.S. Chamber of Commerce which argued in favor of Noel Canning at the D.C. Court of Appeals. The Chamber President Tom Donohue stated:
I am pleased that the government announced it will seek U.S. Supreme Court review of the recess appointments case we briefed and argued on behalf of our member, the Noel Canning Corporation, in the D.C. Circuit. The government’s decision to seek Supreme Court review is an important step toward resolving the tremendous uncertainty created by the controversial recess appointments.
What could happen if the Supreme Court reviews the case? And what are the potential consequences? There are several possible scenarios.
Scenario #1: The Supreme Court chooses not to review the case
The Supreme Court could decide to not re-open the Noel Canning vs. NLRB case for fear of creating further complications and confusion. If the Supreme Court questions the validity of this specific NLRB ruling and the constitutionality of the recess appointments, this could then cause the validity of all other NLRB rulings since January 2012 to be questioned. Solicitor General Donald Verrilli explained that invalidating the NLRB decision and the President’s appointments would threaten “a significant disruption of the federal government’s operations” and “dramatically curtail” Obama’s authority, outcomes the Supreme Court may prefer to avoid.
Scenario #2: The Supreme Court chooses to review the case, rules in favor of the NLRB
The Supreme Court could decide that Obama’s recess appointments were in fact constitutional, thus validating the NLRB’s decisions and ruling of the Noel Canning case.
This is the outcome the NLRB hopes for. According to John Berlau, Senior Fellow for Finance and Access to Capital in the Center for Economic Freedom at CEI:
For months, the administration has said the NLRB ruling has no ramifications for other cases, even though President Obama appointed Richard Cordray to Dodd-Frank’s Consumer Financial Protection Bureau in the same manner and on the same day as the NLRB officials. Now, it is practically begging the Supreme Court to take the case because of the precedent this sets for other appointments. The administration’s new admission bolsters CEI’s lawsuit against the CFPB, in which the non-recess “recess” appointment of Cordray is one of the grounds under which we are challenging the agency as unconstitutional.
However, such a decision would be very controversial since the lower court has already made it clear as to why the recess appointments were “an unconstitutional act”: the Senate was in an “intrasession” recess, or a break within a session of Congress, and not an “intersession” recess, or a break between two distinct sessions of Congress.
Scenario #3: The Supreme Court chooses to review the case, rules in favor of Noel Canning, takes no further action
Such an outcome would arise if the Supreme Court does in fact agree that the recess appointments were unconstitutional, but wishes to avoid creating further problems that would arise from questioning the validity of NLRB decisions since January 2012.
This case would be favorable to the Supreme Court because there would be no change in the current status of the ruling or prior NLRB decisions.
Scenario #4: The Supreme Court decides to review the case, rules in favor of Noel Canning, takes further action
If the Supreme Court agrees with the lower court’s decision that the recess appointments are unconstitutional, it could recognize the invalidity of all other decisions made by the Board. This scenario would cause the most turbulence and may therefore be considered the most unlikely outcome.
If the Supreme Court rules in favor of the lower court’s decision, invalidating all other NLRB decisions since 2012, public outcry could force Block and Griffin to step down from their current posts, following Flynn’s lead.
Flynn resigned last year after the Inspector General of the Board said that during his post as an NLRB staff lawyer in 2010-2011, Flynn leaked confidential information about pending cases, how Board members planned to vote, and the Board members’ “internal strategy for handling litigation against it.”
If Block and Griffin resign from the Board, the NLRB will have the opportunity to have a clean slate and allow the Senate to approve non-controversial candidates in a constitutional manner.
What are the chances of each of these outcomes?
Nobody can be sure. However, it is interesting that the NLRB has decided to have the case reviewed, given that president’s actions could potentially be labeled as unconstitutional by the highest court in the country. Why would they take such a risk? Either they’re convinced of the merits of their case, or they’re convinced that enough justices will be on their side, regardless of merit.