When Noel Canning appealed a federal labor board’s decision upholding a union contract two years ago, Gary Lofland did what any attorney would do.
“You raise every legitimate issue you can for your client’s interest,” said Lofland, of Yakima’s Halverson Northwest Law Group.
That meant taking aim at the appointments of two National Labor Relations Board members who voted in favor of the Teamsters Union representing Noel employees.
The board members were controversial recess appointments by President Barack Obama in January 2012, when the Senate had gone into a recess after the start of a new session of Congress without acting on the appointments.
Senate Republicans disputed there was an actual recess and thus contested the appointments, arguing that Obama had no authority to make them because Congress was technically in session, even though it was a largely ceremonial, or pro forma, congressional session.
After all, they said, senators were in town and could have easily been called in to vote on the appointments.
Lofland filed an appeal of the NLRB decision in March 2012. He agreed with Republicans and called for the U.S. Court of Appeals District of Columbia Circuit to invalidate the decision based on a lack of constitutional power for the recess appointments.
The appeal also garnered support from business organizations and Republicans seeking to undermine the NLRB, an agency they felt was too pro-union.
A year ago, the appeals court ruled in favor of Noel Canning, prompting the Obama administration to ask the Supreme Court to review the case, known as NLRB vs. Noel Canning.
In oral arguments scheduled for Monday, high-powered constitutional lawyers on both sides will argue for either a broad or narrow interpretation of the Recess Appointments Clause of the U.S. Constitution.
And it all started with an obscure labor dispute involving some 35 employees of a soft drink company in a city that most of those lawyers probably didn’t know existed.
The Obama administration argues that prevailing opinion and practice support the president’s authority to fill any vacancy during any congressional recess, whether between sessions or during a session.
In contrast, Noel Canning backs a narrow interpretation that allows a president to fill vacancies only during a recess between legislative sessions and, importantly, only for vacancies that occur during that recess.
In the not too distant past, there hasn’t been support for a judicial review of the proper interpretation of the recess appointments clause, said Gerard N. Magliocca, a professor at the Indiana University Robert H. McKinney School of Law in Bloomington, Ind. He recently provided commentary on the case for SCOTUSblog, a popular U.S. Supreme Court news and analysis website.
But such a review has become necessary, Magliocca said, because recent presidents have used recess appointments as a way around partisan opposition in the Senate, which must confirm appointments.
Presidents of both parties have justified recess appointments as a response to what they say is political obstructionism by the other side during the Senate confirmation process.
“In essence, this case is an outgrowth of these nomination fights over a number of years,” Magliocca said.
In 2004, the U.S. Court of Appeals 11th Circuit affirmed President George W. Bush’s recess appointment of William H. Pryor Jr. as a judge for that court. The ruling came after Senate Democrats, who had refused to vote on Pryor’s confirmation due to his conservative judicial record, argued that the appointment was invalid because it was not made during a recess between sessions.
Presidents have been making recess appointments since George Washington. The constitutional theory behind the authority is that the executive branch is always on duty, in contrast to the legislative branch, which recesses from time to time. Supporters of a broad interpretation of the clause say that it doesn’t make any sense to give recess appointment power to the president on the one hand only to yank it away just because Congress is in recess during a session rather than between sessions.
The conflict over Pryor prompted arguments by some constitutional law professors for a more narrow reading of the recess appointments clause.
And now a decade later, the Noel Canning case provides the opportunity.
“Once somebody goes in and starts making those arguments and courts are taking it seriously, people are saying maybe we can get a better court” to affirm the arguments, Magliocca said.
Indeed, the majority of the friend-of-the-court briefs call for affirmation for the Court of Appeals decision, which adhered to the narrow interpretation and upheld Noel’s challenge to the Obama appointments.
Many of those briefs cite research from Michael B. Rappaport, a professor at the University of San Diego School of Law. Rappaport is also part of a group of law school professors called “Originalist Scholars” that filed a brief in support of Noel Canning’s position.
Rappaport first voiced his position during the Bush case a decade ago. He intended to defend Bush’s recess appointment of Pryor, but further research led him to the opposite conclusion: that the original intent of the clause was to allow for appointments only for vacancies that arose during a recess between legislative sessions.
Rappaport’s view has not changed despite the fact that now Republicans are taking issue with Obama’s recess appointments.
“You have this unusual situation where people’s position depends on who the actors are,” he said. “I try to take a step back from the whole thing and look at it from a more objective or legal perspective.”
Many also believe a narrow interpretation ensures proper checks and balances between the president and Congress.
“The president’s decision to overrule Congress’ determination that it was in session on Jan. 4, 2012, (when recess appointments to the NLRB were made) is such an abuse of power,” argue attorneys for House Speaker John Boehner, R-Ohio, in a brief for the case. “The speaker of the House, on behalf the House of Representatives, has a constitutional duty to oppose the president’s trespass on legislative branch domain.”
Sen. Mitch McConnell, the Republican leader from Kentucky, also filed a brief in support of Noel’s position.
A smaller group of briefs backs a broader interpretation of the recess appointments clause.
In its brief, the Brennan Center for Justice, a public policy and law institute based at New York University, said broad presidential recess appointment power is necessary for the government to properly function.
Alicia Bannon, counsel in the center’s democracy program, said without recess appointments, the NLRB would have lacked a sufficient quorum to make decisions for nearly 3,000 days — about eight years — since 1988.
The decision made by the Court of Appeals District of Columbia Circuit is a departure from what has been a historically accepted interpretation of the appointments clause as broadly applied, Bannon said.
“There has been a long-standing practice and understanding about the scope of the recess appointments clause,” she said.
It’s unclear how the Supreme Court will decide, said Magliocca, of the Robert H. McKinney School of Law.
The court could avoid the issue and opt for a narrow decision determining whether the Senate was in recess when Obama made the appointments rather than set a precedent on the proper interpretation of the recess appointments clause.
One factor that could keep the court from establishing a major precedent was the recent action by the Democratic-controlled U.S. Senate to change its rules and confirm most presidential nominees with a simple majority, Magliocca said. Previously, a supermajority of 60 votes was required. That rule change made the Noel case less precedent-setting than it would have otherwise been.
“They can conclude that this might not be a big problem in the future,” he said.
Lofland, the Yakima attorney, did not want to speculate on the outcome, but thinks the strong support from well-regarded legal scholars for his side is a plus.
“It reaffirms the constitutional principles that appointees have to be approved and confirmed by the Senate,” he said. “I think we have strong arguments for the issues the court will decide.”
Despite being a party in this case, the original Noel Canning labor dispute — whether employees had a valid contract or not, and the NLRB ruled they did — has faded into the background.
Lofland is traveling to Washington, D.C., to be part of the team representing the company before the high court, but the case will be argued by an attorney from the firm of Jones Day.
According to Lofland, the Supreme Court’s ruling could force the parties — Noel and Teamsters Local No. 760 — back to the bargaining table.
But Leonard Crouch, secretary-treasurer for Teamsters 760, said he believes the union will prevail even if the ruling is invalidated. That’s because the union could file again with the NLRB, whose members are now considered valid appointments by both parties.
“We would prevail with a new (NLRB) board,” he said.
Ken Dolin, an attorney who specializes in labor relations issues for the Seyfarth Shaw law firm in Chicago, said if the Supreme Court upholds Noel, the current NLRB board would have to revisit hundreds of cases decided by the recesss appointees.
Dolin, however, did not expect a new board to change many of the original decisions.
“The long-term impact may not be that great, but it will be a consumption of time that will prevent the new (NLRB) board from doing other matters, and candidly, to make more pro-labor decisions.”
Lofland said the fact that his case went to the Supreme Court was a coincidence that put Yakima-based Noel into a national spotlight.
Still, he appreciates the opportunity to be involved in such a high-profile case.
“It doesn’t come up frequently in one’s career,” he said.