The background here stretches back to a 2010 decision by the Supreme Court holding that the NLRB is powerless to act unless it has a quorum of at least three members. The NLRB has exclusive jurisdiction over what are known as “unfair labor practices,” meaning that it is the only body of government permitted to enforce much of federal labor law. If the NLRB is powerless to act, there will be no one to enforce workers’ rights to join a union without intimidation from their employer. No one to enforce workers’ rights to join together to oppose abusive work conditions. And no one to make an employer actually bargain with a union. Without an NLRB to enforce the law, it may be possible for an employer to round up all of their pro-union workers, fire them, and then replace them with anti-union scabs who will immediately call a vote to decertify the union.
This reality gave Senate Republican filibusters of President Obama’s NLRB nominees a special aura of danger. When the Senate minority filibusters nominees to a powerful court, the other judges on that court can continue to issue decisions (even if those decisions are likely to reflect the ideological preferences of past presidents). If senators filibuster most agency heads, the agency’s remaining staff can maintain its day to day operations. But if a filibuster blocks confirmations to the NLRB, a sweeping array of workers’ rights simply cease to exist.
To ward this off, President Obama recess appointed three people to the NLRB nearly a year and a half ago. A panel of Republican-appointed judges on the United States Court of Appeals for the D.C. Circuit struck down those recess appointments earlier this year. And, today, two more Republican judges voted to strike down the same appointments (an Obama appointee on the same court voted to uphold them).
While the rationale behind the these two court decisions is somewhat different, it’s not clear how much legal arguments actually matter in a case like this. The bottom line is that every Republican judge to consider the matter has now struck down President Obama’s appointments. There are five Republicans, and only four Democrats on the Supreme Court. That’s probably all you need to know if you’re placing bets on how the justices will resolve the case.
So five Republican justices are likely to uphold the two decisions blocking recess appointments. Without recess appointments most of federal labor law ceases to exist until the seats on the NLRB are filled — indeed, some 1,400 NLRB decisions may be retroactively invalidated. Without federal labor law, nothing prevents employers from engaging in the most ruthless purges of unions seen in this country since before the New Deal. And all that Senate Republicans need to do to maintain this status quo is to keep filibustering President Obama’s nominees.
Recently, several Senate Democrats, including Senate Majority Leader Harry Reid (D-NV) raised the idea of a second round of filibuster reform to ensure that Senate Republicans do not have the power to unilaterally obstruct nominees. If Reid cannot assemble the 51 votes he needs to enact such reforms, then every Democrat who opposes filibuster reform has likely voted to strip workers of their rights.