Well, that went badly.
The Supreme Court heard oral arguments Monday in a challenge to President Obama’s power to name several recess appointments to the National Labor Relations Board. By most accounts, the argument did not go well for the administration. Justice Stephen Breyer said that he could not find anything in the Constitution that will “allow the president to overcome Senate resistance” to nominees. Justice Elena Kagan suggested that “it was the Senate’s job to decide” when it is in recess. Chief Justice John Roberts claimed that the Senate has “an absolute right to refuse” to confirm a nominee.
As a practical matter, it now seems likely that the Supreme Court is poised to eliminate the president’s power to make recess appointments. There is some question whether they will virtually read the recess appointments power out of the Constitution, as a federal appellate court did, or merely hold that the Senate can defeat the president’s ability to make recess appointments by gaveling itself into a sham session every few days. This distinction, however, is probably only academic. If a future Republican Senate wants to prevent a Democratic president from making recess appointments, or vice versa, then they are perfectly capable of holding sham sessions.
In the short term, the death of the recess appointments power won’t matter much — President Obama’s party still controls the Senate and a recent rules change means that Senate Democrats are actually capable of confirming Obama’s nominees. Should Republicans regain the Senate in the next election, however, they would suddenly gain an unchecked power to prevent Obama from filling any job that normally requires Senate confirmation.
And the biggest impact of a Supreme Court decision eviscerating the recess appointments power could arise in just under five years.
The reason President Obama made these recess appointments to the NLRB is that the Board was about to lose the minimum number of members its required to have in order to operate, and without a functioning NLRB, much of American labor law becomes unenforceable. As ThinkProgress explained after a lower federal court called the recess appointments into question,
If the NLRB is powerless to act, there will be no one to enforce workers’ rights to join a union without intimidation from their employer. No one to enforce workers’ rights to join together to oppose abusive work conditions. And no one to make an employer actually bargain with a union. Without an NLRB to enforce the law, it may be possible for an employer to round up all of their pro-union workers, fire them, and then replace them with anti-union scabs who will immediately call a vote to decertify the union.
Last July, as part of an unsuccessful effort by Republicans to ward off a change to the Senate’s rules, the Senate confirmed a full slate of nominees to the NLRB to five year terms. Because of these confirmations, the NLRB will have enough personnel to operate for at least four and a half more years. When the current members terms expire, however, a Supreme Court decision gutting the recess appointments power could make it impossible to fill the NLRB’s vacant seats.
Ultimately, the fate of the NLRB — and of American labor law — will hinge upon who controls the Senate and the White House. If both the president and the Senate want America to continue to have labor law in 2018, then confirming new NLRB members should not be an issue. The problem arises if the Senate would prefer to let federal union rights sunset — just as Senate Republicans seemed prepared to allow them to sunset earlier this year. In other words, if those same Senate Republicans control the Senate in 2018, it may not matter who is in control of the White House. Those senators will have the unilaterally authority to shut down American labor law and leave unionized workers with little recourse against rapacious employers.
Many of the labor rights protected by the NLRB have existed since the Roosevelt Administration, and our Constitution is quite clear that the only way to repeal those rights is to pass a bill through both houses of Congress that is either signed by the president or passed again by a veto proof majority. Yet, by taking away the recess appointment power, the Supreme Court appears poised to create a backdoor way to repeal a law. Senators can simply refuse to confirm anyone to the only agency that can enforce much of federal labor law, and the president will be powerless to do anything about it.