Today, Cablevision asked the Supreme Court to stay the National Labor Relations Board’s (NLRB) pending trial against the company. The NLRB intends to try its complaint against Cablevision next week despite a Federal Court of Appeals decision holding that the NLRB currently has no legal authority to act.
The NLRB lacks authority to act because President Barack Obama appointed a majority of its members on January 4, 2012, during an intra-session break in the Senate’s ordinary business. The President asserted that this break was a “recess” pursuant to the Recess Appointments Clause of the Constitution, which empowers the President to make appointments during “the Recess” without Senate approval. The DC Circuit Court of Appeals disagreed, holding that the Recess Clause applies only to a recess between Senate sessions: “The appointments structure would have been turned upside down if the President could make appointments any time the Senate so much as broke for lunch.”
The Supreme Court has decided to review the DC Circuit’s decision, but it remains the law until and unless the Supreme Court overrules it. In the meantime, the NLRB is continuing to wield federal power in open defiance of the appellate court’s authority.
Why would the NLRB insist on going to trial when the Supreme Court could invalidate the proceedings? Because Federal power thrives on the costs imposed by bureaucracy on companies that lack the resources to resist it. “The NLRB’s crude strategy is obvious: It expects that companies will settle complaints rather than endure the expense and hassle.”
The Supreme Court should stop the NLRB’s “death by a thousand cuts” strategy and send a message that Federal agencies cannot simply ignore the courts: It should stay the case against Cablevision until the Supreme Court makes its decision regarding the NLRB’s authority.