Cloaking Themselves In Constitution, GOP Senators Ask High Court To Toss NLRB Recess Appointees

WASHINGTON—Piously cloaking themselves in the U.S. Constitution and invoking what they claim is the intent of its framers, all 45 Republican U.S. senators asked the U.S. Supreme Court to toss out Democratic President Barack Obama’s “recess appointees” to the National Labor Relations Board – and, by inference, all the decisions in worker-boss disputes that those NLRB members voted on.

In a so-called “friend of the court” legal brief, often filed by interest groups to show their stand on an issue, the Republicans, marshaled by Minority Leader Mitch McConnell, R-Kent., claim that if the justices agree with Obama, the president’s appointment power would be unlimited. And the framers did not want that, they said.

The GOP filed its brief in late May, just after the court was virtually guaranteed to hear the important and controversial recess appointees case. On June 20, the justices will decide when to schedule it. Early October would be the first opportunity.

In a normal Supreme Court case, the loser – in this case the NLRB and the Obama Justice Department – asks the justices to take the case and pleads to overturn the lower court’s decision. The winner asks the court to let the lower court ruling stand or approve it. In this case, the winner, the Noel Canning Co., of Washington state, wants the High Court to take the case and decide the issue, too.

The firm argued the justices should straighten out confusion in lower courts: Some ruled for Obama’s NLRB recess appointees and their powers to decide labor cases. But two circuit courts, including the influential D.C. Circuit Court of Appeals in Canning’s case, ruled against Obama and called the recess appointments illegal.

So Noel Canning vs. NLRB is important to workers nationwide: If the justices back the D.C. Circuit judges’ Jan. 25 decision, the board – and its enforcement of labor law for workers, union and non-union alike – would come to a screeching halt.

Those three D.C. judges, later joined by a 2-judge majority, out of three judges overall, in a circuit court in Philadelphia, said the recess appointees are illegal. By that logic, the NLRB’s Noel Canning ruling was illegal, too, as are 918 other decisions the recess appointees, Sharon Block and Richard Griffin, have voted on.

Left unsaid, in either the senators’ brief or anywhere else, is the reason Obama had to make the recess appointments in the first place: Senate GOP filibusters blocked and defeated his regular NLRB nominees, stripping the board of its required members.

Instead, the GOPers charge that Obama is violating the constitutional “advice and consent” power lodged in the Senate. They oppose all recess appointees.

“This case presents an issue of great importance that warrants this court’s attention,” the Republicans declare. “Indeed, the stakes for the separation of powers are much greater than the executive (branch) lets on.”

The Obama Justice Department’s “portrayal of the dispute as concerning only the scope of the president’s power to fill vacancies when the Senate is absent omits a crucial component of the case: When the president made the purported recess appointments to the board on Jan. 4, 2012, the Senate was not in ‘the recess,’ even by the executive’s own longstanding definition” of that term, the GOP continues.

“Quite the contrary, between Dec. 17, 2011, and Jan. 23, 2012,” the Senate “held regularly scheduled sessions every three days, at which it could and did conduct any legislative business it chose, by unanimous consent, up to and including passing legislation. Until now, the executive itself — including this administration — agreed that by doing so, the Senate remains in ‘session,’ foreclosing recess appointments.”

The Obama administration’s petition asking the court to decide the recess appointees issue “elides (glides over) this critical fact, thus distorting the issue the case actually presents and concealing its true implications for the constitutional structure.

“By purporting to appoint principal officers unilaterally while the Senate was sitting, the president usurped two powers the Constitution confers explicitly, and exclusively, on the Senate,” the GOPers say. Those are the Senate’s power to accept or reject presidential nominees and its power to set its schedule, including recesses.

The AFL-CIO has yet to formally file a friend of the court brief in the case, but the federation has repeatedly made labor’s position on the fight clear. It wants a full NLRB, fed President Richard Trumka said after Obama in April re-nominated Block, Griffin and board chairman Mark Gaston Pearce. Obama also nominated two management-side labor lawyers to fill vacancies on the GOP side of the board. Republicans may filibuster Block and Griffin. One, Sen. Lindsey Graham, R-S.C., threatens to filibuster all five.

Labor-management relations have “been in disarray since the decision in the Noel Canning case,” Trumka said then. “For workers, businesses and the promotion of healthy commerce, putting forward a full, bi-partisan package of nominees to the NLRB is the right thing to do. Working people need and deserve a functioning NLRB, and confirmation of a full package will provide that stability. The labor movement understands that when the NLRB is not at full strength and cannot enforce its orders, America’s economy falls out of balance, as it is today with record inequality and a shrinking middle class.”