Chief Justice Roberts: Why Isn’t Obama Making Recess Appointments To The NLRB?

For two years now, the National Labor Relations Board (NLRB) — which is responsible for mediating disputes under the National Labor Relations Act — has been stuck with only two of its five members in place. This is an significant problem, because there’s a serious legal challenge to the NLRB’s authority to issue rulings with just two members.

Yesterday, the Supreme Court heard arguments in New Process Steel v. National Labor Relations Board, and if the decision goes against the NLRB, more than 600 cases that the shorthanded board has decided could be thrown out.

The Obama administration has actually nominated members to the board, including former AFL-CIO and SEIU attorney Craig Becker, but Senate obstruction has prevented them from moving forward. Conservatives have decided that Becker’s nomination is a proxy battle for the Employee Free Choice Act (EFCA), believing that Becker will somehow institute EFCA all by himself, which is, of course, nonsense.

This obstruction has led the administration to hint that it may recess appoint Becker. And during oral arguments at the Supreme Court yesterday, Chief Justice John Roberts essentially agreed that recess appointments are the way to go:

NEAL KATYAL, DEPUTY SOLICITOR GENERAL: They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum — a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?

Senate Health, Education, Labor and Pensions Committee Chairman Tom Harkin (D-IA) said yesterday that he expects a recess appointment for Becker to occur. “It’s going to happen,” he said. A group of 20 business lobbying groups, led by the Chamber of Commerce, wrote Obama yesterday to advocate against a recess appointment, so they seem to be legitimately worried such an appointment will happen

If this is indeed the route Obama has to go, then he should. It’s unacceptable for the board that mediates labor disputes to be hobbled for so long and for Republicans to hold up the nominations over their disapproval of an unrelated piece of legislation. As Michael Whitney put it, “each time the right picks a fight with Becker, [TSA Nominee Errol] Southers, or the Employee Free Choice Act, both corporations and the right directly benefit from one fewer chance for workers to exercise their rights.”

Plus, Roberts’ line of questioning seems to indicate that he is leaning toward throwing out all of the hobbled NLRB’s decisions, making it that much more important that the board return to full strength.