WASHINGTON – Several Supreme Court justices on Monday expressed grave doubts about the constitutionality of President Obama’s appointment of several members of the National Labor Relations Board – including Buffalo-born lawyer Richard F. Griffin Jr. – without Senate confirmation.
Hearing arguments in what’s potentially a landmark case on the president’s power to make “recess appointments” when the Senate is not in session, the court’s liberal justices joined their conservative colleagues in questioning whether recent presidents – including Obama – have stretched that power far beyond its original intent.
The case will not determine Griffin’s fate, since Obama withdrew his nomination to a permanent slot on the board last year as part of a Senate deal to let several other nominations move forward.
But the case will likely redefine a key presidential power while also potentially determining the fate of labor board decisions made by Griffin and other recess appointees – including a key ruling on Internet free speech in the workplace that has its roots in a dispute at Hispanics United of Buffalo.
At issue is the Constitution’s recess appointments clause, which says: “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”
Presidents since George Washington have used that clause to fill vacancies during the Senate’s absence. The practice – which recent presidents have stretched to be used even during the shortest of congressional breaks – has not faced a major court challenge until now.
That puts the justices in a bit of a dilemma, Justice Elena Kagan said.
“There is a 200-year-old established practice, everybody has agreed to it, but the text (of the Constitution), when you really look at it, points the other way,” she said.
That other way would lead to a narrow reading of the recess appointments clause, one in which presidents could fill key vacancies without the Senate’s consent only when the Senate is on an extended break.
Designed to give the president a way to fill vacancies during the long congressional recesses of the horse-and-buggy era, the recess appointments clause since has morphed into a way for presidents to get their nominees into office despite the objections of senators of the other party, several justices said.
“Going back to President Reagan, presidents of both parties essentially have used this clause as a way to deal not with congressional absence, but with congressional intransigence,” Kagan said.
The trouble is, presidents appear to have no clear constitutional right to do so, Justice Stephen G. Breyer said.
“I can’t find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the president,” Breyer said.
With liberals such as Kagan and Breyer making similar arguments to those of conservatives Antonin Scalia and Samuel A. Alito Jr., the court appeared to be leaning toward sculpting a narrow definition of the recess appointment power.
The case presents the justices several options for doing that, as they are considering three separate legal questions:
• Whether presidents can make recess appointments only during the Christmas break between sessions of Congress.
• Whether recess appointments are appropriate only when a vacancy occurs while the Senate is on break.
• And whether the president can make recess appointments during “pro forma” Senate sessions where no major business is being conducted.
Obama appointed Griffin, Sharon Block and a third NLRB member who has since resigned to the board during one of those pro forma Senate sessions.
The labor board members went on to issue dozens of rulings – including the first-ever federal edict on how far workers can go when discussing their work on social media.
“Employees have a protected right to discuss matters affecting their employment amongst themselves,” the NLRB ruled in a case in which it ordered Hispanics United of Buffalo to restore the jobs and back pay of five employees who had been fired after griping about their work on Facebook.
If the Supreme Court upholds an appeals court decision and rules that Obama violated the Constitution in appointing Griffin and the others to the labor board, there would be questions not only about the decisions they issued, but also about rulings issued by federal judges appointed during congressional recesses, said U.S. Solicitor General Donald B. Verrilli Jr.
“There are many dozens of board decisions, and perhaps, many hundreds of board decisions, that are under a cloud as a result of the D.C. Circuit’s ruling in this case,” Verrilli said.
But Scalia said it’s likely those decisions will stand because of a long-standing legal doctrine that says government decisions are valid even when they’re made by officials whose appointment later turns out to be illegal.
“You don’t really think we’re going to go back and rip out every decision made,” Scalia told Verrilli.
The case, NLRB v. Canning, stems from a lawsuit filed by Noel Canning, a Washington State Pepsi distributor who lost a case before the labor board only to challenge that decision by saying it was made by three board members – including Griffin – who had no legal right to be serving on the board.