A federal appeals court on Friday ruled that President Obama exceeded his constitutional authority with three appointments to the National Labor Relations Board while the Senate was on break last year.
The impact of that decision by a three-judge panel of the D.C. Circuit Court of Appeals in Noel Canning v. NLRB will depend on what the Obama administration does next.
First things first, the NLRB said Friday that it plans to move forward with business as usual, issuing decisions in labor disputes as though nothing has changed. NLRB spokeswoman Nancy Cleeland said more than 100 such cases are pending with the board.
The Justice Department can appeal Friday’s ruling to the full D.C. Circuit Court or to the U.S. Supreme Court.
If the administration appeals Friday’s decision to the Supreme Court, the ruling there would determine the validity of all board decisions since Obama made his appointments in January 2012 — and the validity of the board members themselves.
The board has already ruled on more than 200 disputes since Obama made his appointments, according to Cleeland, who said at least a dozen of those cases have been appealed to circuit courts.
Could Friday’s ruling invalidate those decisions?
Not unless they’ve been appealed specifically to the D.C. Circuit Court, where a precedent has now been set. Federal appeals courts are free to contradict each others’ rulings, so the impact depends on where the NLRB’s decisions are being challenged.
One catch: Plaintiffs always have the option of taking their appeals to the D.C. Circuit Court, regardless of where the cases originated. It would make little sense at this point not to challenge the NLRB’s in that court, where Friday’s decision would dictate the outcome.
This leaves the Obama administration almost no choice but to appeal Friday’s decision, unless it wants to see every NLRB ruling since January 2012 invalidated.
A similar situation played out in 2010, when the board had only two members and various circuit courts disagreed about whether its rulings were valid. The Supreme Court concluded in a 5-4 decision that the board was not authorized to make rulings with less than three members, as required by law.
A key difference in the Noel Canning case is that the board has the requisite number of members. The question now is whether they were appointed properly — the D.C. Circuit Court panel said they were not.
Let’s look at the consequences if the Obama administration appeals to the Supreme Court and loses.
Such a ruling would mean all the board’s decisions since January 2012 are invalid — every court would have to recognize that the rulings were made by a board that lacked proper constitutional authority.
It would also prevent the board from making further rulings until Obama appoints at least two new sitting members and lawmakers confirm them. At least three members are necessary to make a quorum, and all but one right now were appointed while the Senate was on break.
The opposite effects would occur if the Supreme Court overturned Friday’s ruling by the D.C. Circuit court. The board’s decisions would stand and the members appointed during the Senate break could continue to serve.
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