The Role of the Judiciary When the Confirmation Process Stalls: Thoughts on the Two-Member National Labor Relations Board

Catherine L. Fisk, UC Irvine School of Law


From January 2008 until March 2010 when two members received recess appointments, the National Labor Relations Board operated with only two of the five members that the National Labor Relations Act specifies for the Board. Although both President Bush and President Obama nominated members, the Senate declined to confirm them. Five members of the Supreme Court, along with one federal courts of appeals held that the NLRB may not operate with two members; four Justices and five courts of appeals held that it may. All of the reviewing courts relied mainly on dueling readings of the quorum and vacancy provisions of the NLRA. Showing that the statutory language, the legislative history and Chevron deference are insufficient to answer the question, this article calls for a functional analysis of what courts should do when a failure to nominate or confirm replacements threatens to render an agency incapable of enforcing the law.

The Supreme Court’s decision in New Process Steel LLP v. NLRB was a lost opportunity for the Court to address some important questions about the role of reviewing courts when the nomination process stalls: Was the failure to Congress or the President to address the problem facilitated by the NLRB’s willingness to continue to operate with only two members? Would courts help the nomination process by forcing the Senate and the President to choose between confirming nominees and total shut-down? Or would allowing the failure of the confirmation to shut the agency down give a form of heckler’s veto that would ultimately damage the administrative state? Which is worse: agency shut-down or the formation of agency policy by a minority of the statutorily authorized members? To what extent is the risk of nominations stalling a problem unique to labor agencies or other highly-politicized agencies? To what extent has this problem gotten worse because of an increase in holds and filibusters? Does the ability to block a nomination, or the refusal to nominate a successor, allow the Senate or the President a kind of de facto repeal of the enabling statute? If so, is there anything wrong with that, or at least wrong enough that the courts should address it? These are the issues that the Court should have, but failed to, address in New Process Steel.