Recess Appointments Ruling: Associations React Strongly

Many associations came out in favor of an appeals court ruling that narrows the period in which presidents can use recess appointments.

It may not always be strictly by-the-rules, but since the days of George Washington, the recess appointment has been one of the president’s most important tools for getting around a slow-moving Senate.

Until now, perhaps. On Friday, a U.S. appeals court ruled that three recess appointments made by President Obama to the National Labor Relations Board (NLRB) are constitutionally invalid—a conclusion that could significantly limit the future reach of the recess appointment.

More on what the decision means and how associations are reacting:

The rise of the recess appointment: Presidents have long used recess appointments to place appointees in executive branch posts while Congress is out of session, but it has become far more common in recent administrations—particularly as the Senate has slowed to a crawl in confirming officials to contentious agencies such as the NLRB. During the presidencies of Bill Clinton and George W. Bush, in particular, the rate of recess appointments jumped sharply, with Clinton making 139 during his eight years, and Bush making 171.

The decision’s effect: On Friday, the U.S. Court of Appeals for the District of Columbia ruled that Obama acted out of turn in appointing three officials to the NLRB last year, finding that he and other presidents using the appointments had defined “recess” too broadly. The president may make recess appointments only during the formal period between Senate sessions, which is sometimes skipped, the court held. The case arose when a canning company filed suit, arguing that because the NLRB’s members were appointed improperly, the board lacked a quorum to properly make a decision in a ruling involving the company.

We’re not gloating here. It creates chaos in the marketplace. But we knew this was possible when the president made this controversial appointment.

Association reaction: The National Association of Manufacturers hailed the decision. “For manufacturers that have been forced to deal with increased burdensome regulations, this is an important moment—perhaps a sign that we may see an NLRB in the future that will exist to improve employer–employee relations in this country rather than tear them down,” the association’s Joe Trauger wrote. Other business groups, including the U.S. Chamber of Commerce, the National Retail Federation, and the National Grocers Association, also voiced support for the ruling.

Unions critical: A number of unions, including the United Food and Commercial Workers International Union, found fault with the ruling. “This decision is misguided,” the group wrote in a statement. “When President Obama made appointments to the NLRB during a congressional recess he was merely exercising his constitutional authority. The real issue here is the Senate’s inability to confirm qualified nominees.”

Where it could apply next: One recent recess appointment that could be affected by the decision is that of the Consumer Financial Protection Bureau’s first director, Richard Cordray. With Cordray’s future in doubt, the NLRB decision increases uncertainty for the banking industry, Consumer Bankers Association President Richard Hunt told Bloomberg. “We’re not gloating here,” he noted. “It creates chaos in the marketplace. But we knew this was possible when the president made this controversial appointment.” While Cordray’s appointment was controversial, Hunt’s group and other associations have generally been pleased with his performance even if they don’t see eye to eye. (The constitutionality of Cordray’s appointment is the subject of a separate lawsuit.)

The case will likely be appealed to the Supreme Court.


Ernie Smith

By Ernie Smith

Ernie Smith is a senior editor for Associations Now, a former newspaper guy, and a man who is dangerous when armed with a good pun. MORE

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