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Posts tagged ‘national labor relations board’

The meaning of “the”

January 13, 2014

petervickery

Does “the” mean “the,” or does “the” mean “a”? theThat is the essence of the key question before the Supreme Court of the United States, which will hear oral arguments today in National Labor Relations Board v. Noel Canning. Ten years ago, when President George W. Bush was in office, the late Senator Ted Kennedy argued that “the” means the definite article. Today counsel for President Obama’s NLRB will say that it does not.  As Senator Kennedy’s brief makes clear, this is not an inherently partisan question, and the meaning of “the” should not depend on which party controls the White House.

At issue is the President’s authority to appoint government officials without the advice and consent of the Senate. As a default rule, the Constitution requires Senate approval for these appointments, but provides an exception:  “The President shall have power to fill up vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” U.S. Const. art. II, S.2., cl. 3.

When can the President exercise this power?  In other words, what is “the recess”? Can any break within a Senate session qualify, or does the phrase only apply to the recess that occurs between sessions?

Ted_Kennedy,_official_photo_portrait_crop

Senator Ted Kennedy

In 2004, Senator Kennedy argued that President Bush’s appointment of a judge was invalid because it happened during a 10-day break after the Senate had reconvened in January 2004 for its second session.  A break within a session does not create an opportunity to exploit the Recess Clause, Kennedy argued. “An intrasession adjournment is not ‘the Recess’ to which the Recess Clause refers.” (Kennedy Amicus Brief, p. 4).

The issue arose again after President Obama made appointments to the NLRB without the Senate’s consent.  The Senate was not between sessions at the time, and was holding pro forma sessions of the sort that it used in 2007 for the express purpose of preventing President Bush from making any more recess appointments.  President Bush appears to have agreed that these pro forma sessions had the effect of keeping the Senate in session and not in recess.  At any rate, he made no further purported “recess” appointments.

The alleged “recess” that President Obama used in January 2012 – like President Bush in 2004 – was within a session of the Senate (an intrasession recess as opposed to an intersession recess). This was precisely the kind of appointment that Senator Kennedy’s brief denounced as unconstitutional.

Back in 2004 the Court of Appeals for the Eleventh Circuit rejected Senator Kennedy’s argument and ruled in favor of President Bush. It held that the “Senate’s break fits the definition of ‘recess’ in use when the Constitution was ratified.” Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).  In contrast, the Court of Appeals for the D.C. Circuit held that “the recess” does not mean just any break in proceedings, but rather is confined to the gap between sessions.

The lower courts are divided.  Now it is up to the Supreme Court to decide which argument is correct: Senator Kennedy’s or President Obama’s.

Update: June 26, 2014: The Supreme Court of the United States held that the Senate is in session whenever it says that it is, so long as it has the capacity to transact Senate business.

Two out of three ain’t bad, but it ain’t enough

May 15, 2012

petervickery

Forming a union involves two initial steps: a petition and an election. To cut the time between the two, and make it slightly easier for workers to engage in their right to unionize, the National Labor Relations Board (NLRB) issued New Representation Case Procedures. Before the new rule could take effect, the US Chamber of Commerce sued, together with the Coalition for a Democratic Workplace, arguing that the NLRB had exceeded its authority. The United States District Court for the District of Columbia granted their motion. Why?

Although the NLRB should have five members, at the time it adopted the new rules it only had three. Because the governing statute sets the quorum at three, all current members would have to participate in adopting the final rule. Voting on the final rule took place electronically, and only two of the three members voted. The third member, who opposed the measure, had voted against previous versions but did not e-mail his opposition/abstention with regard to the final version. So the judge held that the third member had not “participated” in the vote, meaning that the NLRB lacked a quorum when it adopted the rule.

Will the fully-quorate NLRB readopt the rule? Let’s wait and see.

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