DC Circuit gets it right on NLRB appointments

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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The Obama administration’s whatever-it-takes theory of constitutional governance hit a bump in the road Friday at the District of Columbia Circuit Court of Appeals. A unanimous three-judge panel of that court ruled (in Noel Canning v. NLRB) that President Obama’s appointments of three individuals to the National Labor Relations Board were invalid, and an order issued by the thus constituted NLRB is therefore void.

On February 8, 2012, Noel Canning, a division of the Noel Corporation, was found by the NLRB to have violated the National Labor Relations Act. At the time, the NLRB included three members appointed by President Obama on January 4, 2012, purportedly pursuant to the president’s authority under the recess appointments clause of the Constitution. In challenging the validity of the three appointments and therefore the validity of the NLRB order, Noel Canning was joined by 42 members of the United States Senate as amici curiae.

The fact that almost every Republican member of the Senate joined a friend-of-the-court brief in support of Noel Canning underscores that this is no ordinary administrative law dispute. Rather it is one more phase in a long-running struggle for power between the president and Congress. Had a Republican president made the challenged appointments, we can rest assured that the vast majority of Democratic senators would have joined a similar brief claiming intrusion on the Senate’s constitutional power to advise and consent to presidential appointments of officers of the United States.

We might ponder why so blatant an executive intrusion on one of the Senate’s constitutionally prescribed functions did not draw resistance from members of both parties in the Senate. There have been times in our nation’s history when, on fundamental matters of constitutional principle, partisanship has given way to principle for at least some members of the Senate, but those days are long past. Which underscores the importance of judicial review in general and the willingness of the three judges in this case to accept their constitutional responsibility, in the words of Chief Justice John Marshall, “to say what the law is.”

In the spirit of partisanship, the decision is certain to be panned as judicial activism by a panel of judges all appointed by Republican presidents. But it will be difficult for many in the president’s political camp to argue with a straight face that this court got it wrong. To do so, critics must be willing to abandon all pretense of allegiance to the principles of constitutional government and the rule of law.

The court’s opinion, written by Judge David Sentelle, is a very careful analysis of the language of the Constitution relating to the appointment and confirmation of executive officers. He convincingly demonstrates that the modern practice, by presidents of both parties, of making controversial appointments when the Senate is adjourned for as few as three days is not what the framers intended by authorizing appointments during “the Recess” between sessions of Congress.

The Constitution was in part a response to the executive abuses of power and violations of individual liberty that the American colonists had endured under British rule. One of the ways the framers tried to rein in the president’s power was by making Senate confirmation of executive officers a default principle. It is ludicrous to contend that our nation’s founders would have authorized a method for appointments that allowed the president to effectively evade this default principle.

The clear purpose of the recess appointments clause was to allow for temporary appointments of essential officers when vacancies occurred during what were expected to be extended breaks between sessions. The clause was a practical solution to the challenge of keeping the government functioning in the event of vacancies, not a vehicle through which the president could make appointments everyone knew the Senate would not confirm if in session. Any suggestion to the contrary doesn’t pass the straight-face test.

Given President Obama’s persistent and unabashed insistence that his administration can’t wait on Congress and will therefore do whatever it takes to achieve his policy objectives, it seems the straight-face test will count for little over the next four years. And given the partisan divides in the House and Senate, it seems unlikely that Democrats and Republicans will come together to defend Congress’ constitutional turf. All of which makes the D.C. Circuit’s ruling that the president has exceeded his constitutional authority in appointments to the NLRB all the more important.

Because the D.C. Circuit’s ruling is in conflict with a decision of the 11th Circuit Court of Appeals, the question will likely end up in the Supreme Court. If and when it does, the justices will have another opportunity to contemplate whether ours is really a government of limited and divided powers.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.