The President's Agenda Faces Peril in the Courts

The most ardent desire of conservative judges is to defeat progressive legislation and progressive enforcement of the laws, and the recent decision of the United States Court of Appeals for the District of Columbia Circuit in Noel Canning v. National Labor Relations Board is a pretty spectacular triumph of conservative judicial obstructionism. It shows what may be in store for President Obama's agenda in his new term on gun safety, immigration and environmental policy in courts that remain dominated by right-wing ideologues. It also shows how and why conservatives on the courts are working in tandem with conservatives in Congress to obstruct President Obama's judicial nominees.

The D.C. Circuit is the most important court in the land after the U.S. Supreme Court. It handles a stream of constitutional, administrative-law and regulatory cases. With five vehemently conservative judges nominated by Republican presidents at the helm (reduced to four last week with the departure of arch-reactionary Judge David Sentelle, who is taking senior status), lording over three judges nominated by President Clinton, the D.C. Circuit has been a continuing source of right-wing victory on fundamental questions of governance. A bastion of pro-executive branch thinking during the autocratic Bush years, the D.C. Circuit has become a sharp-eyed skeptic of presidential power under President Obama. The president made two nominations to the D.C. Circuit during his first term, but neither has had a yes-or-no confirmation vote in the filibuster-tangled Senate. As the nominations have languished, the number of vacancies has climbed, so that there are now four vacancies on the 11-member D.C. Circuit crying out to be filled by progressive jurists.

The conflict in the Noel Canning case followed from the long-standing resolve of Republicans in Congress to keep the National Labor Relations Board from effectively protecting the right of American workers to organize. The NLRB has seats for five members and at least three seats need to be filled to create a quorum for work. Had the Senate been allowed to vote on President Obama's nominees for the NLRB, departing Board members would have been replaced and the Board would have been able, best as it can, to enforce the statutory rights of American workers. But Senate Republicans realized they could accomplish through obstruction what they cannot do honestly by legislation: simply eliminate the power of the NLRB to act. So they used filibuster tactics to block President Obama's nominations of three NLRB Members. To prevent this agency shutdown, Obama then moved to fill the vacancies with "recess appointments."

Under Article II, Section 2, Clause 3 of the Constitution, presidents can make recess appointments "to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next Session." There is nothing novel about the practice: according to the New York Times, George W. Bush made 171 recess appointments, Bill Clinton made 139, and Obama has made just 32 of them. Moreover, these recess appointments have never been limited to the recesses that take place between different sessions of the Senate.

Yet, in Noel Canning, arch-reactionary Judge David Sentelle found another way to prolong the obstruction. He wrote an opinion for a unanimous three-judge court ruling that "the recess" of Congress means only the particular recess of Congress that occurs once a year at the formal end of a Session. Thus, Obama's intra-Session NLRB appointments were illegal, meaning there was no quorum on the NLRB to hear the Noel Canning case; the court threw out the unfair labor practice finding from below. The Washington state union which had won an NLRB order compelling an employer in the bottling industry to commit its labor agreement to writing now lost its decision. The decision of the D.C. Circuit panel --made up of judges named by Presidents Ronald Reagan, George H.W. Bush, and George W. Bush - also casts doubt on a year's worth of NLRB decisions protecting American workers. Furthermore, a majority of the three-judge panel also found that the recess appointment power applies only to vacancies that actually arise during the newly redefined and restricted recess period, not those which existed before and continued to exist in the recess period.

The decision is a powerful inducement to more abuse of the filibuster power in the Senate. Tea-Party Republicans today can thwart not only the legislative majority in the Senate but the power of the president to staff his administration now that the D.C. Circuit has greatly undermined and constricted his Appointments power. The whole political universe now revolves around an obstructionist minority in the Senate.

But the maneuverings around the Appointments power of the President are, of course, a sideshow to the real political action here. The name of the game that the judges are playing is: destroy the labor movement.

There is no better demonstration of the dangers that judges pose for workers today than an 11th Circuit decision from last year called Mulhall v. UNITE HERE Local 355. The case is now on the verge of being heard by the Roberts Court, which just asked the Solicitor General for his views of the case.

In Mulhall, the 11th Circuit threatens a virtual wipeout of union power. The key right that American workers won in the Wagner Act (1935)--the right to organize into a union without adverse employment consequences--has already been undermined over the decades by right-wing judges, a sluggish NLRB, and pathetically weak remedies for the thousands of workers who actually get fired every year for trying to organize. To work around the giant obstacles placed in their path, a number of unions have evolved a new practice: they present employers with union cards completed by a majority of the work force and ask for company neutrality and cooperation in lieu of a long and ferociously drawn-out battle (which almost always favors management) in return for an agreement of labor peace and long-term contracts. This path of a "card-check agreement" has helped to keep the labor movement alive against the most extreme odds.

Management lawyers hate card-check agreements because they prefer for employers to intimidate and dominate unions rather than have them remain neutral in organizing campaigns. In two prior cases, one in the Fourth Circuit and one in the Third Circuit, courts have heard challenges to card-check agreements as a violation of Section 302 of the Taft-Hartley Act, which prevents employers from paying "any money or other thing of value" to a union. But these courts have strongly rejected these claims, finding that the purpose of this provision in Taft-Hartley is to prevent bribery of union officials; that neutrality and cooperation are not bribes and have no financial value within the meaning of the law; and that organizing assistance does not qualify as a financial payment.

But the 11th Circuit cast aside the judgment of these conservative courts and went for the jugular in Mulhall. It found that "organizing assistance can be a thing of value" prohibited by the Taft-Hartley Act, meaning that card-check agreements in Alabama, Florida, and Georgia--where the right to organize has already been reduced to ashes--are now potentially unlawful.

Worse, the 11th Circuit decision has created a circuit split and the Supreme Court now looks very interested in taking the case. If it were to affirm the 11th Circuit's reading of the issue, unions would have good reason to give up on federal labor law altogether and to fight for their rights under common law and state statutory law. With right-wing judges wielding the gavel and the pen, the federal labor law regime has turned into quicksand for workers.

Reactionary conservatives have always sought to pack courts with judges to invalidate democratic legislation that they could not stop legislatively. Whether we are talking about labor rights, gun safety laws, climate change legislation, or immigration reform, laws that Americans care about deeply are shaped by the courts. We do not need far right judges abusing their positions to torpedo the agenda that President Obama was elected to enact. All the more reason for President Obama and Senate Democrats to take on the knights of the filibuster and start filling those crucial judicial vacancies across the land.