Supreme Court Update: National Labor Relations Board v. Noel Canning (12-1281) and Harris v. Quinn (11-581)

July 3, 2014 Supreme Court Update

Greetings, Court fans!

You'll forgive us for taking a few days to work through the last of the Court's big end-of-Term decisions. This Update covers two of them: National Labor Relations Board v. Noel Canning (12-1281), limiting the President's ability to make appointments during short recesses of the Senate; and Harris v. Quinn (11-681), exempting so-called partial public employees from having to contribute union dues.

The Recess Appointments Clause of the Constitution provides an exception to the general rule that the President must obtain the "Advice and Consent" of the Senate for appointments, by authorizing the President "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." Although Presidents have invoked the Clause for over 200 years, National Labor Relations Board v. Noel Canning (12-1281) marked the first time the Court interpreted it.

This particular case arose when the NLRB issued an order adverse to soda distributor Noel Canning. Noel Canning challenged the order in the D.C. Circuit, arguing that the Board lacked the necessary quorum to act because three of its five members were invalidly appointed. President Obama had appointed these three members at a time when the Senate was taking a series of brief recesses punctuated by pro forma sessions every Tuesday and Friday. Noel Canning argued that the three-day recesses were not long enough to trigger the Recess Appointments Clause. The D.C. Circuit agreed that the appointments were invalid, but on broader grounds. The D.C. Circuit held that the phrase "recess of the Senate" only refers to recesses that fall between the yearly formal sessions of Congress (inter-session recesses), not adjournments that occur within a session of Congress (intra-session recesses). The D.C. Circuit also held that the phrase "vacancies that may happen during the recess" only applies to vacancies that come into existence during a recess, not those that pre-exist the recess. The three appointments at issue here were made during an intra-session recess, and filled pre-existing vacancies.

The Court affirmed. All nine Justices agreed that the appointments were invalid, but split sharply 5-4 as to why. Justice Breyer, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, rejected the D.C. Circuit's broad reasoning, but agreed with Noel Canning's initial argument that three-day recesses were too short to permit recess appointments. The remaining Justices, led by Justice Scalia, agreed with the D.C. Circuit's reasoning and concurred in the judgment only.

The Court began by interpreting the phrase "the recess of the Senate." The majority found the text to be ambiguous. While the use of the word "the" in the "the recess" might refer to the single break between formal sessions of Congress, "the" can also be a generic signifier. Founding-era dictionaries defined "recess" simply as "a period of cessation from usual work." The Court found that the purpose and historical application of the Clause strongly supported interpreting "recess" to include intra- as well as inter-sessions of Congress. The purpose of the Clause is to give the President authority to make appointments, to ensure the continued functioning of the federal government when the Senate is away, and the Senate is equally away during both types of recess. Intra-session recesses, and therefore intra-session recess appointments, were rare before the Civil War. But as Congress lengthened its sessions and took longer and more frequent intra-session breaks, Presidents correspondingly made more intra-session recess appointments. The Senate has not historically opposed the practice, as a body or by committee.

Turning to the phrase "vacancies that may happen during the recess," Justice Breyer acknowledged that the most natural reading is that a vacancy "happens" when it initially occurs. But "happen" can also refer to a continuing state, so the text is at least ambiguous. The purpose of the Clause supported the broader reading, as the need to fill a pre-existing vacancy was as great if not greater than the need to fill a newly arising one. The Court recognized the risk that a broad interpretation might permit a President to avoid Senate confirmations as a matter of course, but agreed with an early commentator that "considerations of character and politics" would prevent Presidents from abusing the Clause in this way. Looking to the historical record, the Court found a long tradition of Presidents making recess appointments to fill pre-existing vacancies, dating back to James Madison, who, the Court noted, should be "as familiar as anyone with the workings of the Constitutional Convention." While the Senate passed a law prohibiting payments to such appointees at one point in the 1860's, it abandoned its hostility by 1940 and had not challenged it since.

Responding to Justice Scalia's criticism of the majority's deference to historical practice, Justice Breyer noted that the Court was well aware if its duty "to say what the law is." But longstanding practice could inform the Court's determination of "what the law is." Particularly where the Court was interpreting a provision for the "first time in more than 200 years," it should "hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached."

The Court next considered whether a recess could ever be too short to trigger the Recess Appointments Clause. The majority found one guidepost in the Adjournments Clause, which provides that neither House shall adjourn for more than three days without the consent of the other. The Court reasoned that a Senate recess that is so short that it does not require the consent of the House of Representatives is not long enough to trigger the President's recess-appointment power. The majority found another guidepost in the fact that until the appointments at issue, there had only been a handful of appointments during inter-session recesses of less than 10 days, and none during intra-session recesses of less than 10 days. The majority therefore concluded, in light of historical practice, that a recess of more than 3 days but less than 10 days is also "presumptively too short" to fall within the Clause. The presumption might be overcome in "some very unusual circumstance," but, Justice Breyer added,"[i]t should go without saying … that political opposition in the Senate would not qualify as an unusual circumstance."

That still left the question of how to characterize what the Senate did when it adopted a resolution to convene "pro forma session[s]" only, with "no business . . . transacted," every Tuesday and Friday for a one-month period from December 2011 to January 2012. Did the pro forma sessions count as real sessions, such that the month consisted of numerous three-day recesses punctuated by the pro forma sessions? Or were they not really sessions at all, such that the Senate remained on one long recess? The Court held that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. Here, the Senate said it was in session. Although the Senate had passed a resolution stating that it would conduct no business, the Senate's rules make clear that it still retained the power to do so. The Senate operates under the presumption that a quorum is present unless a present Senator suggests the absence of a quorum. Nothing in the Congressional Record reflected such a suggestion here. (And so, in a twist on the age-old riddle, it would appear that if there are no Senators in the forest, and there are no Senators there to object, there are Senators in the forest.) The Court refused the SG's invitation to engage in a "more realistic appraisal" of what the Senate actually did (including by reference to C-SPAN coverage showing an almost empty chambers). The Court did not believe that engaging in that kind of factual appraisal was either "legally or practically appropriate," as it would risk undue judicial interference with the functioning of the Legislative Branch.

Justice Scalia, joined by the Chief Justice and Justices Thomas and Alito, concurred in the judgment only. Scalia would have held, as the D.C. Circuit did, that the Recess Appointments Clause only extends to the single inter-session recess between annual sessions of Congress, and only to the vacancies that arise during that recess. Scalia did not find colloquial definitions of the term "recess" to be persuasive, as the "notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self­refuting." As to vacancies, Scalia posited that if the drafters had wanted to include pre-existing vacancies, they could have easily referred to "Vacancies that may exist," or simply "Vacancies." Instead, they referred to "Vacancies that may happen," clearly signifying vacancies that arise during a recess. Scalia also challenged the majority's purpose-based interpretation of the Clause, stating that the primary purpose of the Constitution is not to keep offices filled, but to protect the people from the improvident exercise of power. Scalia saved his sharpest critique for the majority's reliance on historical practice, deeming it an improper "adverse-possession theory of executive authority." Scalia countered Breyer's lengthy historical review with one of his own, and concluded that the Senate's acceptance of intra-session recess appointments and appointments to fill pre-existing vacancies was far from clear. Even if it were, the limitation on the President's appointment power should not be dependent on Senate action, because it was there "not for the benefit of the Senate, but for the protection of the people." Scalia believed that the majority's deference to historical practice was contrary to the Court's responsibility "to say what the law is," and foreboded "a diminution of th[e] Court's role in controversies involving the separation of powers and the structure of government."

Canning was the last of the sharply divided 9-0 decisions of the Term. In Harris v. Quinn (11-681), the Court returned to more familiar June territory: a sharply divided 5-4 decision. In Harris, the Court came this close to overruling Abood v. Detroit Board of Education (1977), a nearly 40-year-old precedent that authorizes state and local governments to mandate "union shop" arrangements, whereby public employees are compelled to pay association fees to the unions that represent them even if they are not in fact union members and object to the union's political activities. The case was closely watched by both sides of the public-employee-union debate, for without Abood's authorization of union shop arrangements in the public sector, it is doubtful that public employee unions could survive in the face of inevitable free riding by public employees who might seek to benefit from collective bargaining without paying union dues. The Court stopped short of overruling Abood, however, holding instead that the precedent does not apply to "partial public employees," like those who objected to Illinois's union shop arrangement at issue here. But union leaders reading Justice Alito's majority opinion will know better than to ask for whom the bell tolls.

Some background: Illinois has a program, funded by Medicaid, to provide in-home personal care to people who would otherwise be put in an institution. The State pays the salaries of these personal assistants, but the person receiving the care makes almost all other decisions about the employment relationship. In 2003, Illinois made personal assistants "public employees" for the purposes of the Illinois Public Labor Relations Act. As public employees, personal assistants are represented by a single union, and Illinois and this union entered into an agreement under which non-unionized members would still have to pay an "agency fee," or a share of union dues. Three personal assistants filed a putative class action alleging this "agency fee" violated their First Amendment rights. The district court dismissed their claims with prejudice, and the Seventh Circuit (in relevant part) affirmed, relying principally on Abood.

The Supreme Court reversed, 5-4, with Justice Alito writing for the conservative majority. Alito began by addressing Abood, which held that state employees could be required to pay fees to unions they had not joined. He traced the lengthy history of case law on unions and fees leading up to Abood, and then devoted several pages to dismantling the "questionable" reasoning behind the decision. In Abood, the Court had essentially taken prior case law authorizing union shop arrangements in the private sector and applied it, without much deliberation, to the public sector. In so doing, Alito averred, "[t]he Abood Court seriously erred," failing to appreciate the critical differences between private and public sector unions, at least as relates to the First Amendment rights of objecting employees. The Abood Court had attempted to draw a line between union fees used for traditional collective-bargaining activities (which are "chargeable" to non-union members) and those used for political or ideological activities (which are not). In Alito's view, such a line is blurred at best, for collective bargaining in the public sector—involving pensions and benefits that are ultimately paid by taxpayers—is inherently political.

Despite its intense criticism of the Abood decision, however, the majority stopped short of reversing it. Instead, the Court held that Abood applies only to "full-fledged public employees," and would not be extended to cover the personal assistants at issue here, whom Illinois had designated as public employees only for purposes of collective bargaining. These employees answer primarily to the individual patients to whom they are providing care, and the union that they are compelled to pay association fees to provides them few benefits. Accordingly, the principles underlying Abood do not apply to these "partial public employees." With Abood cast to the side, Alito proceeded to apply "generally applicable First Amendment standards" to the question at hand, namely whether Illinois can compel non-union public employees to pay association fees to the union that represents them in collective bargaining. Alito determined that the State's requirement does not serve a compelling state interest that cannot be achieved through less restrictive means. It does not promote "labor peace," because a union's status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked. And while it may be that the union had been an effective advocate for personal assistants in Illinois, there was no showing that the union could not have achieved similar benefits even without the compelled association fees of nonmembers. Alito then rebuffed the Solicitor General's attempt to recast Abood as a case about public employee speech that should be applied using a Pickering-type balancing test. In the first place, Pickering balancing is not appropriate here because Illinois was not acting in a traditional employer role with respect to the personal care assistants. In any event, the Illinois requirement would not withstand Pickering balancing because, as explained earlier, public union speech is always on a matter of public concern. Finally, Alito insisted that the majority's opinion does not cast doubt on other decisions upholding the constitutionality of state bar fees and student activity fees at public universities. While States do have a compelling interest in regulating the legal profession and in promoting student expression in a manner that is viewpoint neutral, they do not have a compelling interest in requiring partial public employees to contribute association fees to unions that they have declined to join.

Justice Kagan, joined by Justices Ginsberg, Breyer, and Sotomayor, dissented. She found "cause for satisfaction, though hardly applause" in the majority's refusal to overrule Abood, especially as the petitioners had devoted most of their briefing and argument to calling for its reversal. As Kagan saw it, the real work done in the majority opinion had to do with (incorrectly) distinguishing Abood; all those pages critiquing Abood's very foundation were "gratuitous dicta." She insisted, perhaps wishfully, that "[o]ur precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision." Turning to the issue on which they had lost, the dissent argued that under Abood, Illinois's compelled agency fee was permissible. The "fair share provisions" at issue in each case were substantively identical, so the only issue, in Kagan's view, is "whether it matters that the personal assistants here are employees not only of the State but also of the disabled persons for whom they care." Kagan concluded that the personal care workers are joint employees, subject to the authority of both the State and the individuals to whom they provide care. Because the State had "sole authority over every workforce-wide term and condition of the assistants' employment—in other words, the issues most likely to be the subject of collective bargaining," there was no reason to hold, as the majority had, that Abood does not apply to these workers. But she concluded where she began, with a staunch defense of Abood's standing under the doctrine of stare decisis. Describing Abood as "entrenched" and the basis for thousands of public-sector contracts across the country, Justice Kagan made clear that Abood is still good law. Further, it fits within the bigger context of how the Court has treated the government as an employer – a context in which the agency fees at issue here should be permissible. The dissent concluded with a warning that agency fees are necessary to eliminate free-rider problems, and therefore necessary to the very survival of public unions. Overruling Abood, therefore, would deprive states and local governments "of the tool that many have thought necessary and appropriate to make collective bargaining work."

Thanks for staying with us, Court fans! Just one more to go, but it's a doozy. Stay tuned for Burwell v. Hobby Lobby Stores (13-354).

Kim, Jenny & Tadhg