Noel Canning, a Pepsi-Co bottler, is asking St. Nicholas for
a very special gift: a win at court. He
is the plaintiff in a lawsuit against the Obama administration for unconstitutionally
appointing members of the National Labor Relations Board (NLRB), a board which
ruled against Canning in an administrative case this year. Also asking Santa
for the same thing this Christmas are the U.S. Chamber of Commerce; Senator
Mitchell McConnell and 41 other Senate Republicans. A hearing on this matter in a D.C. court was just held yesterday.
So why did these plaintiffs file this lawsuit? By law, the National Labor Relations Board
needs at least three of its five members to issue rulings. But as of January 4,
2011, the NLRB only had two members. President
Obama then ‘appointed’ Sharon Block (D), Richard Griffin (D), and Terence Flynn
(R), at a time when the Senate was still in pro forma session. Flynn left, leaving
one legally appointed Democrat, one legally appointed Republican, and two
illegally appointed Democrats on the NLRB.
The NLRB proceeded to act as if its members were legitimate, issuing
rulings against businesses like Noel Canning’s.
Miguel Estrada, counsel for the Senate Republicans, declared
that upholding the appointments would take a “break-glass-in-
case-of-emergency” power and turn into “a background rule that allows our
president to evade the role of the Senate.”
Judge Thomas B. Griffith, a former Senate counsel and one of the judges hearing the case, said,
“Once you remove yourself from the principles set forth in the Constitution —
intersession versus intrasession — you are adrift.”
Upholding the president’s appointments in this case would start
a decline down a slippery slope. Senate Republican Leader Mitch McConnell says if
Mr. Obama’s stance prevails, presidents could make appointments when the Senate
takes its recess for weekly party caucus lunches. Estrada said that if the court accepted Mr.
Obama’s interpretation here, it would open the door for the president to also
declare filibusters to be violations of his ability to get an up-or-down vote on
a nominee.
Obama’s lawyer tried to argue that during the pro forma
session from January 3 to January 23, the Senate passed no legislation, took no
votes, accepted no official messages from the president and held no debates. One of the plaintiffs’ lawyers, Noel
Francisco, rejoined
that “they were capable of doing something. If you flip on C-SPAN on any given
day, you will see a Senate that is not particularly busy.” Francisco added that
it was not the president's job to determine when the Senate, an independent
body, is in recess. In a Chicago appeals
court hearing on a similar case challenging the legitimacy of the NLRB
appointments, Glenn Taubman, an attorney for the National Right to Work Legal
Foundation, argued that “Congress has the power under the rule-making clause to
do its business as it sees fit.”
According to Estrada, when the Senate passed a resolution in
December agreeing to remain in session, that action was sufficient. Estrada said,
“The Senate was gaveled into session as the Senate, not as a few guys in a bar.” Maybe a few guys in a bar didn’t consent to
nominees, but a few guys who are members of the bar will decide whether those nominations
are valid. They didn’t say when they may rule. But some are hoping for a joyous Noel.