The U.S. Supreme Court has set a date of Jan. 13, 2014, to review a lower court ruling that President Obama’s early 2012 “recess” appointments of three members to the National Labor Relations Board (NLRB) were unconstitutional.
The original case was brought by Noel Canning, a Washington state bottling company, which challenged an NLRB decision that it must enter into a collective bargaining agreement with a labor union. The ABC-led Coalition for a Democratic Workplace (CDW) intervened in the case and, on Jan. 25, the U.S. Court of Appeals for the D.C. Circuit ruled that the president violated the Constitution when he bypassed the Senate to fill NLRB vacancies. On May 16, the U.S. Court of Appeals for the 3rd Circuit issued another ruling declaring the March 2010 recess appointment of Craig Becker to the NLRB unconstitutional, as well. The U.S. Court of Appeals for the 4th Circuit agreed with the two other courts in a ruling on July 17.
After the Appeals Court for the D.C. Circuit issued its ruling, the NLRB filed a petition with the U.S. Supreme Court to appeal it. In response, all 45 U.S. Senate Republicans, the CDW and the U.S. Chamber of Commerce filed friend-of-the-court briefs asking the Supreme Court to uphold the decision. The Senators also asked the court to review the president’s recess appointment power as a whole.
If the U.S. Supreme Court upholds the Noel Canning decision, the ruling would invalidate all decisions issued under the terms of the unlawful recess appointees.
The NLRB has been fully staffed since July 30 when the Senate voted to confirm five presidential nominees. Now that the board is fully staffed, it can issue rules and decisions requiring a quorum unencumbered by the legal obstructions that have plagued it over the last two years, including Noel Canning case.