President Obama made recess appointments to the National Labor Relations Board while the Senate was still technically in session. He did this because he knew his radical, pro-union nominees would not have gotten enough votes to be confirmed. (This was before Harry Reid nuked the Senate rules.) Now the Supreme Court will decide whether those appointments were constitutional. The appointments were already deemed to be unconstitutional by lower courts.
In Monday’s arguments, attorneys with the U.S. Chamber of Commerce will argue on behalf of Noel Canning that the NLRB operated without a quorum for well over a year, causing confusion for both employers and employees.
“We look forward to the much needed clarity that the Supreme Court’s decision will bring,” said Lily Fu Claffee, the Chamber’s general counsel.
The Obama administration’s case hinges on winning three points, according to Georgetown University Law Center’s Nicholas Quinn Rosenkranz, who is arguing against the government.
First, it must convince the justices that presidents may make appointments during regular recesses and not, as the appeals court ruled, only during the breaks between numbered sessions on Congress.
Next, the court must agree that the appointments may include the filling of vacancies that existed before the recess began, rather than those that occurred during a recess.
Finally, it must conclude that the pro-forma sessions do not count as formal sessions of Congress.
Proving all three points, particularly the last, would be a tall order, said Rosenkranz, who predicted a 9-0 ruling in favor of Noel Canning. (Read More)
Maybe the Chamber should spend more of its money and energy fighting this sort of lawlessness rather than trying to defeat conservative candidates.