Noel Canning v NLRB: restoring a balance of power


The D.C Circuit Court of Appeals ruled yesterday that President Obama’s three appointments to the National Labor Relations Board  were unconstitutional. This for many was hardly a surprise. The court, however, did not stop there. If the Supreme Court allows this judgement to stand, it is historic in that it re-establishes the proper balance of powers between the branches of government. I strongly suggest everyone read this ruling: Noel Canning v NLRB.

The court looks at the history of the Recess Appointment Clause:

The interpretation of the Clause in the years immediately following the Constitution’s ratification is the most instructive historical analysis in discerning the original meaning. Indeed, such early interpretation is a “critical tool of constitutional interpretation” because it reflects the “public understanding” of the text “in the period after its . . . ratification.” Heller, 128 S.Ct. at 2804–05. With respect to the Recess Appointments Clause, historical practice strongly supports the intersession interpretation. The available evidence shows that no President attempted to make an intrasession recess appointment for 80 years after the Constitution was ratified. Michael A. Carrier,Note, When is the Senate in Recess for Purposes of the Recess Appointments Clause?, 92 Mich. L. Rev. 2204, 2211 (1994). The first intrasession recess appointment probably did not come until 1867, when President Andrew Johnson apparently appointed one district court judge during an intrasession adjournment.See Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 408–09 (2005). It is not even entirely clear that the Johnson appointment was made during an intrasession recess. See id. at 409 n.136…….

Whatever the precise number of putative intrasession recess appointments before 1947, it is well established that for at least 80 years after the ratification of the Constitution, no President attempted such an appointment, and for decades thereafter, such appointments were exceedingly rare. The Supreme Court in Printz v. United States, exploring the reach of federal power over the states, deemed it significant that the early Congress had not attempted to exercise the questioned power. 521 U.S. 898 (1997). Paralleling the Supreme Court’s reasoning in Printz, we conclude that the infrequency of intrasession recess appointments during the first 150 years of the Republic “suggests an assumed absence of [the] power” to make such appointments. Id. at 908. Though it is true that intrasession recesses of significant length may have been far less common in those early days than today, see Carrier, supra, at 2211, it is nonetheless the case that the appointment practices of Presidents more nearly contemporaneous with the adoption of the Constitution do not support the propriety of intrasession recess appointments. Their early understanding of the Constitution is more probative of its original meaning than anything to be drawn from administrations of more recent vintage.

After much legal interpretation, the Court found not only did the President not have the power to determine when the Congress is in session, which was expected, they also ruled  a recess appointment can only be made if the vacancy occurred while the Congress was in recess, striking down the modern-day interpretation of recess appointments:

We further note that the “arise” interpretation is consistent with other usages of “happen” in the Constitution. Article I, Section 3, Clause 2, the Senate Vacancies Clause, provides for the filling of vacancies in Senate seats. Though now amended, at the time of the adoption of the Constitution, that section stated: “if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.” U.S. Const. art. I, § 3, cl. 2. That Clause makes sense if “happen . . . during the Recess” refers to arising or coming into being during “the Recess.” If it merely means that the vacancy happens to exist at the time of a recess, it becomes implausible.

While the Administration is, for the moment, claiming this ruling only applies to the issues in this specific case, the court clearly states the Board had no authority since it did not have a legal quorum:

Here, however, there is “no order to enforce” because there was no lawfully constituted Board. The Cheney order was “outside the orbit of authority” by reason of its scope. The present order is outside the orbit of the authority of the Board because the Board had no authority to issue any order. It had no quorum. See generally New Process Steel, 130 S. Ct. 2635. This, we hold, constitutes an extraordinary circumstance within the meaning of the NLRA.

This ruling clearly invalidates all of the decisions made by the National Labor Review Board since the appointments made by President Obama. Here’s the real kicker folks, this ruling potentially invalidates President Obama’s recess appointment of Richard Cordray as Head of the Consumer Protection Bureau. His appointment is being challenged in a separate lawsuit.

While the week began with a inaugural speech exalting the virtues of big government, the major appellate court of the country provided a reminder that the powers of the government have limits.

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3 Responses to Noel Canning v NLRB: restoring a balance of power

  1. Fantastic post. I think the last sentence summed it up nicely.

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