How a Washington state Pepsi bottling company could hobble Presidential "recess appointment" ability

Kyle Curtis

Fresh from the Reuters wire service this morning is a report regarding the outsized-influence played by the U.S. Chamber of Commerce in the National Labor Review Board v. Noel Canning case scheduled for oral arguments in front of the Supreme Court this coming Monday.

The Chamber of Commerce has provided judicial support in previous cases that it it determined would have on its business interests, typically through the provision of friend-of-the-court briefs and similar sideline support. Usually, the Chamber has found quite a degree of success in the current corporatist-friendly Roberts Court, winning 14 of the 18 cases it was involved in during the Supreme Court's 2012-13 schedule. The Noel Canning case, however, marks the first time that the U.S. Chamber has interceded directly on behalf of one of its clients in front of the country's most powerful bench. And the reason for the Chamber's involvement is due to the opportunity to "stick it" to President Obama and limit the President's opportunity to use his executive power to make "recess appointments."

Let's back up a little here. The roots of this case can be traced back to 2010, in which the Yakima-based Noel Canning company was accused by the Local 760 to have reneged on a verbal agreement regarding an upcoming collective bargaining contract. The National Labor Board of Review ruled in favor of the workers, a decision that was quickly appealed by the Chamber of Commerce who argued that the President had overstepped his constitutional authority when he appointed three of the five-member NLRB panel in January 2012 when the Senate was out of session.

In January 2013, the U.S. Court of Appeals for the District of Columbia determined that President Obama's appointments to the NLRB were unconstitutional, a decision that nullified the NLRB's previous decision in favor of Noel Canning workers. Although the current make-up of the D.C. Circuit Court is split ideologically, at the time of its ruling, the court was very heavily tilted towards Republicans, as most of its judges were either Reagan or Bush 41 appointments. (Indeed, it was due to President Obama's struggle to fill three vacancies on what is the most important of the appellate courts that led to the Senate's move towards minor filibuster reform, resulting with the appointment of judges to fill three seats that had sat empty for years.) The D.C. Appeals Court's decision resulted in "dozens of employers"--as of April 2013--filing similar petitions to appeal NRLB decisions they deemed similarly unconstitutional.

The Supreme Court agreed to listen to the arguments of Noel Canning to determine the constitutionality of the President's "Recess appointments." While a President is provided with the constitutional authority to make executive appointments, this authority is dependent upon the Senate's "advice and consent." The constitution is also explicit in addressing "recess appointments" via the Recess Appointment Clause, which allows a President to fill vacancies that occur during a "Recess of the Senate" and to expire at the end of the current Senate session. As the current NLRB has five appointed members confirmed by the Senate in 2013, the question to be determined is whether those members appointed by President Obama in 2012 indeed represent an act by the President that House Speaker John Boehner referred to as both "unconstitutional and a brazen attempt to undercut the Senate."

What is perhaps overlooked in the details of this case is that from the years 2008-2013 the NLRB lacked a functional five-member decision-making board, all but making its operations completely dysfunctional. The hamstringing of the Board is in line with longtime pro-business efforts to sabotage a government agency that represents labor interests. It is of little surprise that a friend-of-a-court brief issued to the D.C. Court of Appeals was signed on behalf of Republican minority leader Mitch McConnell and 41 Senators that had blocked NLRB appointments for the previous four years.

Of course, the involvement of the considerable legal firepower of the U.S. Chamber of Commerce doesn't hurt Noel Canning's challenge to the NLRB. The company--a PepsiCo bottling distributor in the Yakima and Tri-Cities area of Washington state--seems to have benefited from merely being in the right place at the right time. With the uproar from the pro-business crowd in response to Obama's 2012 NLRB board, it wasn't going to take very long for the Chamber to adopt one of the appeals as its pet project, providing the resources to hopefully mount a successful challenge and limit President's Obama ability to use "recess appointments" to make the necessary executive appointments in the face of stubborn minority opposition.

It appears that if the Chamber of Commerce were to have its way, the President wouldn't be able to make executive appointments, but instead that constitutionally-granted power would be usurped by the Senate. And not even the Senate, mind you, but it would be the minority party in the Senate that would provide the final word on who should fill open spots in the federal governments regulatory agencies. (With the Chamber's approval, of course.)

It is, after all, the Chamber of Commerce's world. They bought and own it. We just live in it.

By Kyle Curtis Jan. 10, 2014