This morning, the Supreme Court is hearing arguments in NLRB v. Noel Canning — a case that has a lot folks in Washington buzzing. It is probably the most important constitutional case since NFIB v. Sebelius (i.e. the Obamacare case), and will undoubtedly give law professors plenty to pontificate over. But, what does it mean for ordinary folks like the 350,000 small business owners whom the National Federation of Independent Business (NFIB) represents across the country?
Commentators frequently refer to Noel Canning as the “recess appointment case,” because the Supreme Court will decide whether President Obama’s January 2012 “recess appointments” to the National Labor Relations Board (NLRB) were constitutional. Nearly a year ago, the Federal Court of Appeals for the District of Columbia ruled that that the president had violated the recess appointment clause of the Constitution when he appointed three new members to the NLRB without seeking advice and consent from the Senate. This was a major setback for the president’s labor agenda — but a victory for the small business community that has voiced increasing concerns over the administration’s enforcement agenda and regulatory policies.
Of course, most Americans have never heard of the recess appointment clause, but they understand the concept of checks and balances. Every fifth grader learns that the Founding Fathers were careful in crafting the Constitution so as to ensure that no one branch of government could become too powerful –thereby limiting the president’s power to unilaterally set public policy.
The system of “Checks and Balances” was designed to prevent either branch from changing the law unless there was broad consensus among the people in order to safeguard our freedoms. But, in the recess appointment case, the president has interpreted his presidential powers as broadly as possible in order accomplish his policy agenda without bothering with Congress.
The issue came to a head in Noel Canning, as the president has asserted such broad powers that he has entirely cut Congress out of the equation. The recess appointment clause allows the president to fill vacancies if they should arise when Congress is not session (i.e. when in Congress is in “recess”). Of course, if Congress is in session then the Constitution requires the president to seek advice and consent from the Senate — an inconvenient requirement for the president, in so far as it gives political opponents an opportunity to oppose a nomination. But, the president is now arguing that the recess appointment clause should be interpreted so liberally as to essentially allow the president to appoint anyone, to any vacancy, without ever having to deal with the Senate.
As you can imagine the devil in the details is over how we are to know when Congress is or is not in session. But without getting into arcane arguments, it is enough to say that the Framers would have been very troubled by the prospect of a president unilaterally setting public policy. And that is precisely what the president was seeking to do in making his so called “recess appointments” to the NLRB. His appointments were politically minded, and were in fact charged with the mission of advancing the Obama administration’s labor agenda through the NLRB.
Case in point: These illegal appointments played a key role in several of NLRB’s highly controversial policy decisions, which the small business community thought dangerous and abusive. For example, in the spring of 2012 the NLRB adopted the so-called “ambush election rule,” which enables union organizers to speed-up the time for a unionization election — so as to prevent employers from informing employees of the downsides to unionization.
Further stacking the deck in favor of union operatives, the president’s NLRB appointments went on to create a rule — without any basis in the law — requiring most every employer, including mom-and-pop shops, to prominently display posters informing employees of their “labor rights.” This “Notice Poster Rule” was blatantly pro-union, and would have enabled aggressive plaintiffs’ attorneys to sue businesses that neglected to display the posters. Luckily the NFIB and other industry groups fought back — ultimately striking down the Notice Poster Rule in federal court.
These politicized actions, benefiting select interest groups, should be expected so long as the President is permitted to exercise unchecked powers. So while the recess appointment case might seem like a Washington issue, the truth is that it will have real world impacts in every American community. Ultimately, the case is about affirming the bedrock principle that this is a nation of limited government, where no one man can wield too great a power over our lives and livelihoods.
Karen R. Harned, Esq., Executive Director, National Federation of Independent Business Small Business Legal Center
