NRCA Applauds Supreme Court Ruling NLRB ‘Recess’ Appointments Were Unconstitutional

NRCA applauds the U.S. Supreme Court’s ruling that President Obama’s “recess” appointments to the National Labor Relations Board (NLRB) in 2012 were unconstitutional. The decision comes in response to litigation supported by NRCA and other employer groups that challenged the constitutionality of the appointments in court. In the case of NLRB v. Noel Canning, the court ruled unanimously that President Obama violated the Constitution’s Recess Appointment Clause when he made the recess appointments to the NLRB.

On Jan. 4, 2012, President Obama appointed three new members to the NLRB as recess appointments, bypassing the normal Senate confirmation process for president nominees to executive branch positions. The Constitution allows the president to make such appointments without a Senate vote of approval when Congress is in recess. However, Congress was in pro-forma session at the time of the appointments. In making the appointments, President Obama argued they were valid because Congress does little work during pro-forma sessions. However, the Supreme Court disagreed, ruling (9-0 on the judgment, 5-4 on the reasoning) that Constitution empowers the president to fill executive branch vacancies only during recesses of sufficient length, and affirmed that pro-forma sessions are valid sessions of Congress.

NRCA supported the litigation challenging the recess appointments because of concerns over the NLRB’s activist regulatory agenda that could adversely effects employers and workers. It is imperative NLRB appointments and appointments to other government agencies be subject to the normal Senate confirmation process whenever possible. NRCA represents union and open-shop contractors and supports policies that maintain an equitable balance in labor-management relations.

It is unclear what immediate impact this ruling will have on the NLRB’s operations and regulatory agenda. However, it likely calls into question the validity of past NLRB decisions that involved board members appointed via recess appointments, and such rulings could be overturned as a result. Additionally, the decision may significantly constrain the agency’s agenda moving forward given the legal confusion it will create concerning past recess appointments and related rulings.

NRCA is pleased with this major legal victory and will continue working to represent roofing industry employers from intrusive government regulation in the legislative, regulatory and legal arenas.