By Tom Odom, Esq.
In January 2014, the U.S. Supreme Court will hear oral argument on the question of whether President Obama exceeded his constitutional authority in purporting to appoint several members of the National Labor Relations Board (“NLRB”) without seeking Senate confirmation of the nominees.
The NLRB had authority to hear and decide labor disputes only if the unconfirmed nominees were counted so as to establish a quorum. Despite prompt protests from the U.S. Senate shortly after the January 2012 putative appointments, the NLRB counted the unconfirmed nominees and decided hundreds of cases of alleged violations of labor laws. One company challenged the authority of the NLRB to act without a valid quorum and the U.S. Court of Appeals for the District of Columbia Circuit agreed that the President exceeded his constitutional authority. Despite that ruling, the NLRB continued to hear and decide cases.
In light of the significant constitutional issues involved, not only have the parties to the case prepared briefs, interested organizations on both sides of the dispute have offered “friend of the court” briefs so as to fully explore the issues. Prince Law Offices, P.C., is proud to be one of the approximately fifteen law firms nationally that were invited to draft such briefs.
Tom Odom, a former law professor who published three books on constitutional law, drafted the brief that will be filed on Monday on behalf of both the National Right to Work Legal Defense and Education Foundation, Inc. as well as an individual the Foundation had assisted in a matter before the NLRB. Prince Law’s brief presents three arguments. First, President Obama could not maintain that the Senate was in recess and unavailable to act on nominations when, just weeks earlier, while the Senate was operating under the very same procedural order, he had successfully called upon the Senate to pass legislation. Second, the general rule the Constitution provides for the appointment of principal officers requires Senate confirmation and any exception to that rule must be read narrowly to avoid swallowing the general rule. Third, in light of modern communications and transportation technology there is rarely, if ever, a time when the President cannot consult with the Senate or when the Senate could not act in its official, collective capacity.
UPDATE: If you want to see a copy of the brief, you can download it here. Also, all briefs will eventually be posted here – http://www.americanbar.org/publications/preview_home/12-1281.html