Enforce the Law: Kafkaesque Reflections on the NLRB

May 15, 2013
Guest Post

by Anne Marie Lofaso, Associate Dean for Faculty Research & Development, Professor of Law, West Virginia University College of Law

The Senate Health, Education, Labor and Pensions (HELP) Committee will hold hearings tomorrow on President Obama’s five nominees to the National Labor Relations Board (NLRB or Board). So why, when there are so many vitally important issues facing our country – the enormous budget deficit and sequester being only two of those issues – is the Senate spending its time on the confirmation of five public servants?

Since the 1947 Taft-Hartley amendments, the Board has been comprised of five members, appointed by the president with the advice and consent of the Senate. For years, Senate Democrats and Republicans held to a gentlemen’s agreement that the president would select three Board members from the majority party and two Board members from the minority party. Over the years, these nominations became increasingly more political, with administrative decisions predictably oscillating between pro-business and pro-labor-enforcement results, depending on which party held control of the Executive Branch.

In an administrative agency that tends to make law by adjudication rather than rulemaking, this back-and-forth between reasonable interpretations of the National Labor Relations Act (NLRA or Act) is both lawful and par for the course. Those in power are privileged to re-interpret the statute that they are charged by Congress with administering so long as the following conditions are met: (1) a case comes along that raises the issue; (2) their statutory interpretation is reasonable and permissible/constitutional; and (3) they give reasons for changing their mind.

That strategy – to the victor goes the spoils – works for either party. The Republicans have, however, another strategy that is not typically available to Democrats, at least with respect to the NLRA. That strategy is to refuse to enforce the law.

The NLRA, by its very nature, is a progressive statute. It creates rights for workers; it imposes duties on employers. In many cases, it makes political sense for less progressive members of Congress to adopt strategies that halt the Act’s enforcement. There are serious problems with this no-enforcement strategy – it destroys the rule of law and the legal foundations our democratic republic with it.

This no-enforcement strategy manifests in many ways. One of the more common methods is for Congress to cut agency budgets. Law enforcement, which entails investigations, hearings, and appeals, costs money. No money, no capacity to enforce the law. This strategy was common during the Clinton administration, after Republicans took over Congress. It promises to be popular now.

The Bush II administration invented new no-enforcement strategies that made the Clinton-era Republicans look like amateurs. President Bush simply let Board-member appointments expire. No Board members, no power to issue decisions enforcing the law.

This strategy proved all the more fruitful when, in New Process Steel, LP v. NLRB, decided June 17, 2010, the United States Supreme Court interpreted NLRA Section 3(b) as creating a three-member Board quorum to issue NLRB decisions. This decision means that an anti-law-enforcement president could essentially abrogate a law simply by refusing to appoint Board members to the NLRB to fill expired terms. That was the strategy utilized by President George W. Bush.

But what if the people vote for a president who is sympathetic to the enforcement of laws that protect workers? No worries. Senatorial Republicans could simply delay consent. This latter strategy has been the strategy of Republican Senators with respect to President Obama’s nominees.

To get around the Republican’s no-law-enforcement strategy of withholding consent, President Obama attempted to make recess appointments, a power that does not require Senatorial consent. The Democratic strategy to enforce that law proved fallible. In Canning v. NLRB, decided on January 25, 2013, a panel of the United States Court of Appeals for the D.C. Circuit – all Republican appointees – held that the Board lacked authority to issue a decision in that case because three of the Board’s five members were never validly appointed under the Constitutional’s Recess Appointments Clause. According to the court, the Republican strategy to withhold Senatorial consent for Democratic appointees to the NLRB for the purpose of making it impossible to enforce the law was not the issue. What was unconstitutional was the president’s attempt to enforce the law by appointing legal officials at a time when Congress was “not in recess” but refusing to conduct business. In other words, it is constitutional for one branch of government – Congress – to bring another branch of government – the administrative agencies – to a grinding halt.

Congressional Republicans had a field day with this decision. Several called for the immediate resignation of those Boards members, whom they labeled “unconstitutional.” When President Obama re-appointed those very same Board members, this time when Congress was actually conducting business, Republican senators feigned shocked. After all, how could the president, our country’s chief law enforcement, reappoint public officials who acted unconstitutionally? Some of those congressional Republicans are now refusing to give their consent on these very grounds. Although Senate Democrats hold a majority, they do not hold a filibuster-proof majority.

This brings us to Thursday’s hearing – a hearing that promises all the pomp and circumstance of a Kafka novel. If I had to guess, very little about the candidates’ credentials will come out during this hearing. Instead, Senate Republicans will proclaim, with righteous indignation, that these legal officials acted unconstitutionally and therefore lack the appropriate character to serve the public. Democrats will threaten to change the filibuster rules – a move that Republicans will label as an “antidemocratic” “bullying” tactic.  The only mystery is who’s going to play Senator Lamar Alexander (R-Tenn.) in the movie version of this hearing. I have my bets on a reincarnated Anthony Perkins.