US Supreme Court Rules on Presidential Appointments to NLRB
PIERRE, S.D – Attorney General Marty Jackley announced today that the United States Supreme Court unanimously held that the Recess Appointment Clause of the United States Constitution was violated by the President’s appointment of three members to the National Labor Relations Board (NLRB). The Court held that the recess appointments exceeded the President’s power.
South Dakota joined 16 other states as part of a Multi-State Amicus Curiae or “friend of the Court” that challenged the President’s power to fill the vacancies that happened during the recess of the Senate.
“The Senate has a vital role in preserving and protecting the balance between federal authority and states’ rights,” said Jackley. “The NLRB’s attempt to void our State Constitutional right to have a secret ballot as enacted by South Dakotans demonstrates the importance of Senate oversight to the NLRB. Our Highest Court has now determined that the President’s attempt to circumvent the Senate with the NLRB recess appointments violated the United States Constitution.”
South Dakota experienced an attempted overreach of power by the NLRB when the NLRB sought to void South Dakota’s Constitutional protections to a secret ballot supported by 79% of South Dakota’s voters in the 2010 general election. On January 14, 2011, the NLRB via a press release and correspondence delivered to the Attorneys General of South Dakota, Arizona, South Carolina and Utah, threatened to sue the states over their recently approved state constitutional amendments protecting citizen’s rights to vote by secret ballot. The NLRB claimed the amendments conflict with the federal National labor Relations Act (NLRA). The NLRB further stated that it had “been authorized to bring a civil action in federal court to seek to invalidate the Amendment[s]” absent the Attorneys General entering into a “stipulation concerning the unconstitutionality of the Amendment[s].”
In a January 27, 2011, joint letter to the NLRB, the Attorneys General including Jackley rejected the NLRB’s demand to stipulate to the unconstitutionality of these amendments. The Attorneys General noted that under the NLRA, “secret elections are generally the most satisfactory--indeed the preferred--method” of ascertaining whether there exists majority support for a matter. The Attorneys General went on to state that “our constitutional amendments protect the right to cast secret ballots, a right that the NLRB itself is ‘under a duty to preserve.’”
The NLRB sued Arizona as their test case and Arizona prevailed over the NLRB. Consequently, the NLRB did not sue South Dakota over its constitutional amendment protecting secret ballots.