When is a recess not a recess? Apparently when someone doesn't play nice on the political playground.
That's been the contention of two U.S. courts so far (district and appellate) with regard to the Obama administration's appointment of three people to the National Labor Relations Board in January of 2012. Both courts said the president's appointments, which can be made more or less by fiat during a congressional recess, were actually made during a holiday break. The Congress was technically still conducting business, the courts said.
Now the U.S. Supreme Court will take up the issue. At stake is not only whether the president can slip a couple of friendlies onto the NLRB without opposition, but also whether a passel of decisions made by that board will stand or be revoked.
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Obama appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to the five-member board, which was down three players. Block and Griffin are Democrats, Flynn a Republican. You can guess who the GOP objected to.
The case, Noel Canning v. Obama, questioned whether a recess was in effect and said the appointments were unconstitutional. Both a district and an appellate panel agreed with the plaintiff.
But is the case actually moot? The administration chose two new appointees to replace Block and Griffin. Former AFL-CIO lawyer Nancy Schiffer and Kent Hirozawa, counsel to NLRB Chairman Mark Pearce, were put forward in the normal let's-fight-over-them way.
The status of those earlier appointees may be water under the bridge. But the court still has to decide whether hundreds of cases adjudicated by the board during that time will stand or fall. So, no, it isn't moot, just half-moot. And the wheels of justice grind on.
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Dan Cook
Dan Cook is a journalist and communications consultant based in Portland, OR. During his journalism career he has been a reporter and editor for a variety of media companies, including American Lawyer Media, BusinessWeek, Newhouse Newspapers, Knight-Ridder, Time Inc., and Reuters. He specializes in health care and insurance related coverage for BenefitsPRO.
