Construction industry groups will be watching closely when the U.S. Supreme Court hears oral arguments on Jan. 13 in a case dealing with presidential authority to name appointees to senior agency positions.
The case, National Labor Relations Board v. Noel Canning, centers on the question of whether a president can make such appointments during a recess that occurs within a session of the Senate or is limited to recesses occurring between Senate sessions. The U.S. Court of Appeals for the D.C. Circuit said in a January 2013 ruling that appointments made during intra-session recesses were unconstitutional.
The case deals specifically with President Obama's recess appointments to the NLRB, a key agency for construction firms and unions. Construction officials say NLRB decisions made when the board included two members whose appointments were invalidated by the appellate court ruling are now in question.
Between Jan. 4, 2012, and August 2013—when the current board roster was confirmed—members Sharon Block and Richard Griffin and Chairman Mark Gaston Pearce issued hundreds of decisions, many of which might need to be reheard, says Geoff Burr, Associated Builders and Contractors vice president of government affairs.
A ruling upholding the D.C. Circuit's opinion could limit a president's ability to appoint controversial nominees to the board and other agencies, Burr says. "I think it will force the president to put forth nominees who are less partisan than the ones President Obama has been putting up throughout his term," he adds.
In a filing with the high court, the NLRB said invalidating intra-session recesses "would prevent the president from being able to fill offices and exercise his constitutional responsibility to take care that the laws be faithfully executed, even when the Senate is unable, for a significant period of time, to give its advice and consent to appointments."
Denise Gold, Associated General Contractors associate general counsel, notes that two other federal appeals courts have issued decisions similar to the D.C. Circuit's. "I would not be surprised if the D.C. Circuit opinion is upheld," Gold says.