Another Supreme Court decision threatens workers

If you are like me you may have had trouble keeping up with all the bad news U.S. Supreme Court opinions issued in recent months. I would like to discuss one of those opinions, Noel Canning, because I think it had some real social class dimensions that may not be immediately noticeable.

Noel Canning is a distributor of Pepsi-Cola products. Its employees are represented by a union. The National Labor Relations Board alleged that after that union and Noel Canning had reached agreement on a collective bargaining agreement Noel Canning refused to sign it. This is a very straightforward violation of labor law, and so the judge hearing the case found. Once a violation of this kind has been established by a judge the employer may appeal the judge’s decision to the five-member National Labor Relations Board in Washington D.C. However, when Noel Canning’s appeal reached the Board three of the five members on it had been appointed by President Obama during a recess of the Senate. The case before the Supreme Court challenged the decision making legitimacy of these three members.

Board members, like other top officials in the federal government, are normally appointed with the “advice and consent” of the Senate. There is a very long tradition of presidents appointing these officials during Senate recesses. In fact, recess appointments are specifically authorized by the Constitution. The original purpose for such an authorization is pretty obvious. The founders were guarding against the Government being hampered (or even shut down) by key vacancies occurring between or at the end of Senate sessions (which in those days were often less frequent). Nevertheless, as we know all too well the recess appointment mechanism has degenerated in recent years into a technique used by presidents to temporarily get their preferred but contested administrative agency official appointee working so that the agency in question is at least able to operate.

In the circumstances leading up to Noel Canning, as a result of various political maneuvers too tedious to recount here, republicans were able to ensure that the Senate would never go into recess during the normal, “formal” inter-session between fall 2011 and spring 2012. No recess, no recess appointment. Simple. The President’s response? He identified a less formal and shorter “adjournment” of the Senate (about three days) during the inter-session, called that a “recess,” and appointed his preferred administrative officials during the adjournment, three of whom were NLRB members. The Supreme Court said he could not do that —a three day adjournment is not a recess. The three NLRB appointees were therefore not “street legal.” Thus, the NLRB only had two viable members, not enough to uphold the obvious violation of Noel Canning (it needed a quorum, at least three members). End of case.

Justice Breyer, a “liberal,” authored the opinion forbidding the “intra-session adjournment” appointments. The implications of the opinion were sufficiently severe—yet more opportunities for tactical Government shutdowns—that Harry Reid, reading the tea leaves, and acting even before the Supreme Court issued the opinion, was finally provoked to employ the “nuclear option”: as of this writing (but stay tuned) all filibusters, save those of federal judges and of legislation, have been significantly curtailed by the amended Senate rules. The lingering message of Noel Canning is that even the liberals on the Supreme Court were unable or unwilling to prevent the clumsy and obvious political tinkering that might have led to wholesale shutdown of government agencies.

What are the “social class” dimensions of the case? First, while a wide variety of recess appointments had been made in the past it is illuminating that the Court selected an NLRB case in which to regulate them for the first time. The NLRB, at least in theory, was established to protect the working class’s interest in collective bargaining. As I have argued elsewhere, the law is often applied differently (I would say unfairly) in labor relations and NLRB cases. Second, the potential ramifications of the opinion were pretty severe. Clamping down on recess appointments even as republican senators were increasingly resorting to the filibuster (or the flimsy substitute for filibuster the Senate for too long had been permitting) threatened to shut down the government altogether.

If you believe, as I do, that the primary purpose of the government (or at least its most important function) is to protect ordinary people, its shutdown is necessarily a class issue, because working class people are disproportionately affected.

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