Obama and Roberts Agree

The public colloquy between President Obama and Chief Justice Roberts continues, but this time they have acted in concert rather than at loggerheads.

At Tuesday’s oral argument in New Process Steel v. National Labor Relations Board, the Court considered whether the five-seat NLRB could command a quorum of three when only two members actually sat on the board.  The Government argued that two board members could, in fact, constitute a quorum for NLRB deliberations in the face of Senatorial obstruction to the President’s three nominees to the NLRB.

After Justices Kennedy, Scalia, and Ginsburg grilled Deputy Solicitor General Katyal over the broken nomination and confirmation process, Chief Justice Roberts lobbed a final, “why are we even here?” question: “And the recess appointment power doesn’t work why?”

Today the President demonstrated that he heard the Chief Justice’s suggestion and used his recess appointment power to place two of his NLRB nominees, both Democrats, in their posts.  Obama left unappointed his third nominee, a Republican.

Whether Obama’s move will compel a majority of the Roberts Court to dismiss the case as moot remains uncertain.  Like Kiyemba, the facts of the case before the Court have so changed as to seemingly unmoor the legal question.  For this reason, the Court may “G…VR” the case for consideration by the newly quorum’ed NLRB.

Nevertheless, New Process Steel’s claim remains grounded in the fact that a statutorily questionable two-member NLRB rendered a decision against the company; indeed, there stand many NLRB decisions made by its two members whose statutory legitimacy would remain questionable without the Court’s ruling.

Further, even with the four members now sitting on the NLRB, simple math and recess appointment rules suggest that the Court would do well to clarify matters: first, one NLRB member is set to retire this summer; second, the two members appointed today may not receive Senate confirmation at the end of the next session of Congress–and at least one has faced significant opposition.  Four minus one minus one or two.  That’s back to below three NLRB members.

The concrete grievances over the legitimacy of past two-member NLRB decisions such as the one against New Process Steel are far more persuasive reasons why the Court should address the merits of this case than the fear of some future moment when the NLRB dips back down below three members.  But that fear of the future will surely affect the Court’s reasoning if it does choose to decide the case so to retroactively (and therefore prospectively) bless or condemn the two-member decisions.