By Fred Wszolek
The petition filed yesterday with the U.S. Supreme Court by the U.S. Solicitor on behalf of the National Labor Relations Board (NLRB) breaks no new ground. We fully support the court granting the petitioner’s petition, but the petitioner’s arguments for reversing the U.S. Court of Appeals for the D.C. Circuit are no match for the circuit court’s far superior rationale.
On the pivotal point in the D.C. Circuit Court’s decision, defining the meaning of the words “the recess,” the petitioner relies on the fact that some words in the U.S. Constitution use “the” for something that may happen multiple times. No argument there. But in an effort to prove its point the petitioner takes words out of context, ignores their plain meaning and the historical context in which they were used. They site, for example, the words “in the absence of the Vice President” which obviously means whenever the Vice President is absent. But that is different from the words “vacancies that may occur during the recess of the Senate.” There is “the recess;” there is no “the absence.” And, as the Court said, if “the recess” means any break or recess in an ongoing Senate session what is to prevent the President from making a recess appointment over lunch?
As with the President, petitioners argue with the facts. They state for example, “The decision repudiates understandings of the Recess Appointments Clause that have been maintained and relied on by the Executive for most of the Nation’s history.” Most? The interpretation of the clause relied upon by the petitioners, that “the recess” means all recesses not just the intersession recesses, is found in an Attorney General’s opinion that was issued in 1921. That’s a bit after 1776. And only a few intra-session appointments were made prior to 1940 and some modern presidents made none.
Reminiscent of the Administration’s “the sky is falling” rhetoric over sequestration, petitioners say, “And because many of the Board’s members have been recess-appointed during the past decade, it could also place earlier orders in jeopardy.”
But parties have to raise the issue and but for the current Board and the recess-appointment of Craig Becker in 2010, no party has raised the issue and minimal standards of due process would clearly militate against their ability to do so now.
Bottom line: it is the President who “repudiates understandings of the Recess Clause that have been maintained and relied upon.” Those understandings of the Executive and Legislative Branches over perhaps the last 50 years where far more permissive than the Constitution allows. We have to thank the President for helping to bring this issue to the high court’s attention.