By:  Marshall B. Babson, Esq.           

           In perhaps the most important constitutional case involving the NLRB since the constitutionality of the National Labor Relations Act (“NLRA” or “Act”) was decided 76 years ago in Jones & Laughlin v. NLRB, the Supreme Court  this morning heard argument in NLRB v. Noel Canning.  On its face, the issue before the Court is whether the Board Members who decided that Noel Canning, a Yakima, Washington canning and bottling company, violated the Act were properly appointed by President Obama.  On January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit held that President Obama’s recess appointments to the NLRB were invalid and did not comply with the requirements of Article II, Section 2.3 of the Constitution.  The court found first that the President only had the power to make recess appointments during inter-session recesses of the Senate, not during intra-session recesses, as was the case with these particular appointments.  Secondly, the court found that the vacancies themselves must have arisen during an inter-session recess.  The Supreme Court today reviewed not only those questions, but also whether the President’s recess appointment power may be exercised when the Senate is convening every three days in pro forma sessions.  At stake for the NLRB is the validity of almost 1,000 decisions issued by one or more recess appointees.  At stake for the country is the fundamental question of when the President may exercise his power to make recess appointments without the Advice and Consent of the Senate.

            The questioning from the Court this morning was vigorous and intense.  Virtually every Justice participated in the questioning.  The “originalists” on the Court focused precisely on the language of the recess appointment clause.  Even the “pragmatists” on the Court were concerned about the plain meaning of the language in question and less focused on the implications of  a broad prohibition on  the recess appointment power of the President.  The Solicitor General, on behalf of the government, argued that if the Court rules against the President, the President’s power to make recess appointments would be eviscerated and hundreds of decisions and rules adversely affected, a  view rejected rather handily by a number of  Justices.  Counsel for Noel Canning emphasized the precise language of the recess appointment clause and the Founding Fathers’ insistence that the Executive not have the unfettered right to choose his officers of government without Senate consent.  A number of Justices questioned whether two hundred years of practice were sufficient to overcome clear language in the Constitution.

            This separation of powers issue between the President and the Senate  is a classic political battle:  where do the powers and responsibilities of one branch end and the other begin?  The fact that the NLRB, some 78 years after its creation, resides  at the very center of this constitutional battle is a reflection of the extraordinary politicization that has overtaken the Agency during the past several decades.  The Court’s decision in Noel Canning, however, will not only determine the validity of hundreds of NLRB decisions, but likely will reconfigure fundamentally  the battle lines between the President and the Senate regarding Presidential appointments  for all time.