The U.S. Chamber of Commerce is capitalizing on the radical federal appeals court decision that held unconstitutional several of President Obama’s recess appointments to help businesses skirt workers’ rights in as many cases as possible. In a memo to its members, the nation’s top corporate lobbying shop urged businesses seeking to challenge rulings against them by the National Labor Relations Board to “act fast” to file their appeal in the same court that ruled in their favor – the U.S. Court of Appeals for the D.C. Circuit – so that they could invalidate adverse NLRB actions before another court steps in:
If you are involved in any case where the Board has issued an adverse decision without a proper quorum, you should consider filing a petition for review in the D.C. Circuit. Any decision of the Board can be appealed to the D.C. Circuit; however, the Board may petition for enforcement in any circuit where an alleged unfair labor practice occurred, or where an employer resides or transacts business. Because other circuits may not reach an equally favorable conclusion on the recess-appointment issue, it may benefit you to act as quickly as possible to ensure that you file your petition in the D.C. Circuit first.
In addition to urging its members to appeal all adverse rulings, the Chamber is taking its own measures to challenge NLRB actions that occurred even before Obama’s January 2012 appointments. Relying upon the sweeping and unsupported reasoning of the decision – which suggests that hundreds of recess appointments made over the last 150 years are unconstitutional – the Chamber is seeking to invalidate 2011 union rules issued by the NLRB.
But as the Chamber acknowledges in its own guidance, other circuits (and the Supreme Court) may soon come to contrary conclusions, as they have in the past. After all, the January 25 ruling by three Republican-appointed judges defining “recess” in the narrowest possible terms disregarded 150 years of modern history and the longstanding practice of presidents from both political parties of making appointments to executive branch vacancies that urgently need to be filled while Congress is out of session.
President Obama’s January 2012 recess appointments to the NLRB, for example, prevented a total standstill by the agency, which is legally prohibited from functioning without at least three members. Likewise, his appointment of Consumer Financial Protection Bureau Agency Director Richard Cordray was necessitated by senators’ wholesale refusal to confirm anybody to the new agency unless its fundamental structure was altered. The agency was prohibited from performing several core functions without a director in place.
As NYU law professor Sally Katzen explains in the Washington Post, senators’ increasing tendency through the filibuster to hold entire federal agencies hostage by refusing to confirm particular appointees is key to understanding the nature of modern recess appointments.
This burgeoning movement by the Chamber previews the chaos that is likely to errupt as conservative interests seek to invalidate as much agency action as possible. But in at least one sense, the Chamber’s reaction is more measured than it could have been. While the Chamber at least acknowledges that businesses seeking to expand the scope of the ruling will have to go through the court system one case at a time, a hospital chain announced last week it would simply cease complying with all recent NLRB rulings, falsely claiming that the D.C. Circuit’s decision automatically invalidated any NLRB action since last January.