Obama’s Recess Appointments To NLRB Slapped Down By Supreme Court


President Obama couldn’t get his radical National Labor Relations Board nominees confirmed through the Senate so he went ahead and appointed them while the Senate was on recess. But the Senate wasn’t on recess at the time, and he knew it. He did it anyway and now the Supreme Court weighed in, saying he overstepped his authority. The decision was unanimous.

The Supreme Court on Thursday ruled unanimously that President Obama overstepped his constitutional authority to make government appointments while the Senate was in recess, saying the upper chamber was in session when the president put members on the National Labor Relations Board in 2012.

The high-profile decision is a major setback for the Obama administration, which said the appointments were necessary to overcome congressional gridlock — and followed the precedent set by Obama’s predecessors.

The three NLRB appointments in question are now invalid. (Read More)

Republicans are happy, but this isn’t exactly the blow to Obama some might have hoped it would be.

The Supreme Court’s decision Thursday does not upset any current appointments. Obama has not exercised his recess appointment power since he named the three individuals to the labor panel and Richard Cordray to head the newly-created Consumer Financial Protection Bureau in 2012.

But the ruling’s impact now and in the near future could be less sweeping than when the current legal fight was set in motion two years ago. That’s because last November, Senate Democrats exercised the so-called nuclear option — doing away with the Republican minority’s power to use the filibuster to block action on most nominees with fewer than 60 votes.

That move broke a logjam on judicial and executive nominations, allowing Obama to win confirmation of a slew of a nominees who had the support of nearly all Democrats but lacked Republican backing.

If Republicans take control of the Senate, things could change, but that’s assuming a handful of them don’t reach across the aisle in an effort to appear bipartisan.

Update: Forbes explains what this means for employers, in short, it won’t do much.

The decision in NLRB vs. Noel Canning invalidates more than 100 decisions the five-member NLRB board made while the contested members were there, including the labor dispute with a Pepsi-Cola distributor that initiated the case. But the new NLRB is dominated by Obama administration appointees who share the same philosophy as the old board so few of those decisions will turn out differently, said Joel Barras, a partner with Reed Smith who focuses on labor relations.

“For an employer, it’s business as usual,” Barras said. “The only relief an employer may get is the board is going be jammed up re-deciding these decisions and may not be able to get to their cases as quickly.”