Justice Delayed

Court rejects appeal, delaying decision on Obama recess appointments


The Supreme Court dismissed a retirement community company’s challenge to the legitimacy of the National Labor Relations Board on Wednesday evening, delaying the expected high court battle over President Barack Obama’s recess appointments.

The NLRB ordered HealthBridge Systems to rehire hundreds of union members in November who had been on strike since July despite a criminal investigation into allegations that some strikers sabotaged the identification documents and medical records of elderly residents, including those suffering from dementia and Alzheimer’s.

HealthBridge was seeking an emergency stay of the NLRB order, which would have prevented the union members from returning to work until the case is appealed. The court’s rejection was the second and final decision in the appeal after Justice Ruth Bader Ginsburg dismissed it on Monday. Justice Antonin Scalia referred the case to the court on Wednesday. Justice Samuel Alito did not participate in the hearing because his wife Martha Ann represented HealthBridge.

“Throughout this process, our guiding principle has been to provide the highest standard of care and safety to our patients,” the company said in a statement. “The court order makes it all the more urgent for the office of the Connecticut chief state’s attorney to complete its investigation of the union workers who committed acts of sabotage against patients when the workers went on strike in July 2012.”

The case could have had major implications for the NLRB, an independent board that settles labor disputes. Obama used his recess authority to make three appointments while the Senate was in pro forma session. A three-judge panel of the D.C. Circuit Court of Appeals declared those appointments unconstitutional in January in Noel Canning v. NLRB.

HealthBridge drew significant portions of its appeal from the D.C. Circuit’s ruling and pointed to the fact that legal experts say Noel Canning will eventually appear before the high court.

“The validity of the president’s recess appointments to the board is a question that will inevitably and quickly find itself before this court, whether in this case, Noel Canning v. NLRB, or another,” the appeal said. “It would be highly anomalous to force HealthBridge to comply with the district court’s order without even having the chance to present its constitutional challenge to the court of appeals or this court.”

HealthBridge is not the only medical center to challenge the legitimacy of the NLRB board. California’s Prime Healthcare Systems informed its union Jan. 30 that it would not comply with an NLRB order that companies must collect dues money for labor groups.

“The D.C. circuit’s ruling from last Friday held all the board’s cases decided by the recess appointments are void,” Prime Healthcare’s assistant general counsel, Mary Schottmiller, told Reuters. “As such, it would violate the law if we followed the Board’s rulings … regarding union dues and witness statements.”

HealthBridge contended it should not be singled out for compliance when so many others are ignoring NLRB rulings while waiting for the courts to act.

“While employers across the country are openly defying final Board adjudications of unfair labor practices, secure in the knowledge that they may challenge those orders in a court that is sure to invalidate them, the coercive power of an Article III court is being used to effectively foreclose HealthBridge’s efforts to pursue the same constitutional challenge even though no one has ever even made a final determination that HealthBridge engaged in any unlawful conduct,” the company’s appeal said (emphasis in the original).

The company now says it will respect the board’s decision.

“While we are disappointed in the decision, HealthBridge managed health care centers intend to comply with the district court’s order,” it said in a statement.

The court said in Noel Canning that presidents can only use recess authority to fill vacancies when the Senate is out of session. The appeals court reasoning follows the strict letter of the Constitution. However, it stands in contrast to how presidents have exercised the authority in the past.

Legal insiders maintain that the Canning decision will reach the high court even if HealthBridge’s challenge was dismissed.

“This is the first time in 200 plus years that the courts have reined in the executive on the recess appointment clause. … It’s a big victory for checks and balances,” said Glenn Taubman, counsel for the National Right to Work Legal Defense Foundation, which filed amicus briefs on behalf of Noel Canning. “Hopefully, the Supreme Court will follow the original intent of Constitution” when it gets there.

Board chairman Mark Gaston Pearce—the only current boardmember to undergo Senate confirmation—said the NLRB would defy the D.C. Circuit’s decision until a higher court weighed in on the case.

“The board respectfully disagrees with [the court’s] decision and believes that the president’s position in the matter will ultimately be upheld,” Pearce said in a statement issued after the ruling. “In the meantime, the board has important work to do … we will continue to perform our statutory duties and issue decisions.”

Pearce has issued numerous judgments in the wake of the ruling with the help of recess appointees Richard Griffin and Sharon Block.

Senate Republicans are looking to curtail the NLRB’s refusal to take action to enforce the D.C. circuit judgment, including legislation to halt board judgments until the issue is resolved.

“Any decisions or regulations made by the people who have no right to be there are invalid,” Sen. Mike Johanns (R., Neb.) said in a statement announcing the Restoring the Constitutional Balance of Power Act of 2013. “This legislation forces them to stop functioning as if they legitimately hold office and recognize the reality that the president overstepped his constitutional authority.”

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He is a 2008 Cornell University graduate and lives in Alexandria, Va with his wife Teresa and daughter Olivia. His Twitter handle is @FBillMcMorris. His email address is mcmorris@freebeacon.com.