NAICU Washington Update

Supreme Court Limits President’s Recess Appointment Authority

June 27, 2014

The U.S. Supreme Court’s unanimous ruling this week in National Labor Relations Board v. Canning, limiting the president’s authority to make recess appointments is likely to have limited consequences for higher education.

This was the first time the high court had interpreted the constitutional provision allowing the president to fill vacancies in the Executive Branch that “may happen during the recess of the Senate.”

The court ruled that President Obama exceeded that authority in January 2012 when he appointed three members to fill vacancies on the National Labor Relations Board. The Senate had refused to confirm his nominees, leaving the board without a quorum and unable to function. The Senate tried to block the president from making recess appointments to fill those vacancies by holding very brief pro forma sessions every three days while most of its members were away from Washington. The president argued that such sessions were a sham, but the Supreme Court unanimously found that under the separation of powers, it is up to the Senate, and not the President, to determine whether or not it is officially in session (“the Senate is in session when it says it is”).

The court’s ruling is unlikely to have major political effects on current and future appointments because of changes in the Senate rules that make it easier to confirm presidential appointments over the objections of the minority. But the ruling will have an effect on the work of the National Labor Relations Board which is now considering several cases of interest to colleges and universities.

More than 400 board decisions, made between January 2012 and August 2013, will now have to be reviewed and reissued. Because there is still a Democratic majority on the board, it is likely that the outcome of these cases will be the same. But their review will take time and may slow the board’s action on several issues currently pending before the NLRB directly concerning colleges and universities. Those include possible reconsideration of the Yeshiva precedent that blocks unionization of regular faculty members at independent colleges and universities, the Brown decision that graduate students are primarily students and therefore not eligible for collective bargaining, and new issues including the unionization of adjunct faculty at faith-based colleges and the unionization of student athletes.

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