Capitol Hill

In a landmark decision in June, the U.S. Supreme Court unanimously ruled three appointments made by President Obama in 2012 to the National Labor Relations Board (NLRB) were unconstitutional. This decision was the culmination of two years of litigation waged by NRCA and other business groups and is a major victory in the fight against excessive government regulation of the private sector.

Background

On Jan. 4, 2012, President Obama, facing opposition from Senate Republicans regarding his candidates, appointed three new members to the NLRB as "recess" appointments, bypassing the typical Senate confirmation process for nominees to executive branch positions. Under the Constitution, presidential nominations are subject to scrutiny by a Senate committee and, ultimately, a majority vote in the Senate to be confirmed. The Constitution also allows presidential nominees to bypass Senate confirmation and serve for a limited time if the president appoints them when the Senate is in recess.

However, the Senate was in a pro forma session at the time of the NLRB appointments. During pro forma sessions, only a few Senators are present and little, if any, business is conducted. However, the Senate may (and does on occasion) pass major legislation by unanimous consent during such sessions. When making the appointments, President Obama argued Congress was effectively in recess because minimal work is conducted during pro forma sessions.

Ironically, the Senate chose to be in a pro forma session at the time of the NLRB appointments for the express purpose of preventing President Obama from making recess appointments. Neither the House nor Senate may recess without the consent of the other. Therefore, the Senate, despite being controlled by Democrats allied with the president, was not able to recess without the consent of the Republican-controlled House of Representatives.

NRCA supported litigation challenging the appointments' validity because of concerns about the NLRB's regulatory agenda, which could adversely affect employers and workers. NRCA represents union and open-shop contractors and supports policies that maintain an equitable balance in labor-management relations. Unfortunately, the NLRB, an independent agency tasked with enforcing U.S. labor laws, has pursued an activist agenda in recent years with the objective of tilting the playing field in favor of unions.

The ruling

Given ongoing concerns about the NLRB's agenda, NRCA and other business groups in the Coalition for a Democratic Workplace (CDW) believe it is imperative appointments to the agency be subject to Senate confirmation to ensure they are reasonably impartial when enforcing the law.

Attorneys advising CDW believed the president had significantly overstepped his boundaries when making the recess appointments, and NRCA and other CDW groups believed it was necessary to challenge the constitutionality of the appointments in court. Ultimately, a lawsuit was filed that argued the appointments were not valid and any resulting decisions made by those appointees similarly were not valid because Congress was, in fact, in session when the appointments were made.

After several favorable decisions by lower courts, the case was appealed to the Supreme Court. In NLRB vs. Noel Canning, the court reaffirmed pro forma sessions are valid sessions of Congress, not recesses, and the Constitution empowers the president to fill executive branch vacancies only during valid recesses of sufficient length. The justices were split on the precise reasoning for their conclusion but unanimous on the ultimate judgment that the appointments were invalid.

The ruling is a victory for NRCA in its fight against excessive government regulation, a major concern of NRCA contractor members. The decision calls into question the validity of hundreds of NLRB decisions made by the disputed board members, and such rulings now will need to be reaffirmed or re-examined. It likely will constrain the agency's agenda moving forward given the legal confusion concerning these past rulings.

This ruling, along with two other recent court decisions in which CDW successfully challenged NRLB initiatives, should have the long-term benefit of constraining executive branch officials from issuing regulations without clear legal authority.

NRCA applauds this decision in a case of major importance to businesses and will continue working to protect roofing industry employers from intrusive government regulations in the legislative, regulatory and legal arenas.

Duane L. Musser is NRCA's vice president of government relations.