ACRU: Court Gets It Mostly Right in NLRB Case


ACRU Staff


June 26, 2014

9-0 Ruling Says President Cannot Make “Recess Appointments” When Senate Is Not in Recess.

WASHINGTON, D.C. (June 26, 2014) — The U.S. Supreme Court’s unanimous decision to rebuke President Obama for making executive recess appointments while the Senate was not in recess is a victory for the rule of law, American Civil Rights Union Chairman Susan A. Carleson said.

“Although the Court could have gone further to keep the Executive Branch from violating the Constitution in the future, as explained in concurring opinions by four conservative justices, the 9-0 ruling is still very welcome,” Carleson said. “Presidents cannot flout the law simply because they think no one will hold them accountable.”

In National Labor Relations Board v. Noel Canning, a Division of the Noel Corporation, the ACRU filed a brief supporting that company’s lawsuit challenging the NLRB’s ruling against it. Noel Canning won its case before the D.C. Circuit Court of Appeals, and the Obama Administration appealed to the high court.

On Jan. 4, 2012, President Obama named Sharon Block, Terence Flynn and Richard Griffin to the NLRB as “recess appointees.” However, the Senate was not in recess. On Feb. 8, 2012, the board issued a ruling against Noel Canning. The brief, written by ACRU General Counsel Peter Ferrara, notes that the board had only two legally appointed members during the Canning ruling, not the three required for a quorum to issue rulings. The president’s action was far more serious than a breach of protocol:

“If the president may declare at his own discretion when the Senate is in recess, that would destroy the whole Separation of Powers check and balance on the President’s Appointment Power,” the brief states.

“It would empower the President to completely evade the primary Appointments Clause required advice and consent of the Senate, whenever, as here, the President fears the Senate will enforce the will of the people against unpopular, radical appointments that would flout even majority viewpoints, let alone any concern for protection of minority views.”

The ACRU brief notes that, “it is the Senate, not the President, that determines when the Senate is in recess.”



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