Labor Board Hobbled By Senate Obstruction Has Hundreds Of Cases Invalidated By Supreme Court

Today, in a 5-4 decision, the Supreme Court invalidated more than 500 cases decided by the National Labor Relations Board. For more than two years, the five person board only had two sitting members, due to Congressional obstruction of its nominees, and the Court decided that the two-person board did not have legal authority to issue rulings.

The Board, which is responsible for overseeing labor-management relations under the National Labor Relations Act, realized in late 2007 that it was not going to have a full complement of members for the upcoming year, so delegated its authority to three members, of which two constitute a quorum. Writing for the majority, Justice John Paul Stevens said this procedural move doesn’t grant a two-person board the ability to do anything:

If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members,and to provide for a Board quorum of three, must be given practical effect rather than swept aside in the face of admittedly difficult circumstances. Section 3(b), as it currently exists, does not authorize the Board to create a tail that would not only wag the dog, but would continue to wag after the dog died.

In dissent, Justice Anthony Kennedy wrote that “the Court’s revisions leave the Board defunct for extended periods of time, a result that Congress surely did not intend.”

I’m not going to get into the legal question regarding whether the decision was the right one, leaving that to far more capable people. But this whole episode clearly illustrates the problem with Congressional obstructionism.

Now, thanks to the unwillingness of Congress to consider and vote on nominations, giving the board its full complement of members, literally years of decisions may have to be relitigated. As Kimberly Freeman Brown, Executive Director of American Rights at Work, said, “hundreds of decisions in cases already decided by the NLRB will have to be re-opened, needlessly delaying finality for workers who were led to believe they already had it.”

And this isn’t solely a Republican or Democratic problem. Both parties are duly guilty of blocking NLRB nominations, under Presidents Bush and Obama. But Republicans in the 111th Congress have taken obstruction to a new level. Earlier this month, the Las Vegas Sun blasted the GOP for blocking 120 of Obama’s nominees:

[T]here are crucial vacancies in the Homeland Security, Defense and Justice departments, the National Transportation Safety Board and the Federal Energy Regulatory Commission, among others, because of the holds. As well, there are five ambassadors and 29 judges who have yet to be confirmed…The Republican holds and filibusters are doing more than hindering the Senate’s work. When the president can’t fill jobs, it blocks the administration from governing. That may score points for Republicans with their base, but it harms the country.

The Supreme Court’s decision shows that Obama was absolutely right to give two NLRB nominees recess appointments, rendering the Board functional once again. Remember, it was Chief Justice John Roberts who advocated that the administration get around Congressional inaction by using the recess appointment power.