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Discussion of vacancy requirements attracts Court’s interest

Below, Dina Guzovsky, a Harvard Law School student, recaps oral argument in New Process Steel v. NLRB (08-1457).  For more information on the case, see the New Process Steel SCOTUSwiki page.

During argument in New Process Steel v. NLRB on Tuesday, the Court honed in on both the precise language of the statute and its policy implications as it attempted to discern whether the NLRB has fallen afoul of the NLRA’s quorum requirements.

Early in the argument, Sheldon Richie, arguing on behalf of petitioner New Process Steel, raised what the NLRB contended was a new argument not encompassed by the question presented. He argued that the NLRB had violated not only Section 3(b)’s quorum requirement, but also its membership requirement, which allows vacancies on the Board but has no similar allowance for delegated groups.  Because the delegated group was missing a member, it violated Section 3(b)’s membership requirement and could not function, regardless of the quorum provisions.

Members of the Court, particularly Justices Scalia, Stevens, and Breyer, reacted favorably to this argument, raising it several times to Deputy Solicitor General Neal Katyal, who argued on behalf of the NLRB.  Questioning Katyal on the mechanics and language of the statute, Stevens wondered whether the group to which authority had been delegated even existed, because with two members it was no longer the same group.

Focusing on the statute itself, Justice Scalia, perhaps surprisingly, immediately embraced New Process Steel’s broad purposive arguments, asking Katyal whether the two-member group was not clearly “an evasion of the whole purpose of the…quorum requirement?”  Meanwhile, Justices Ginsburg and Breyer focused on the language of the statute, questioning New Process Steel about how quorum provisions could have been violated when the statute clearly makes an exception to the three-member quorum requirement for delegated groups.  Richie fell back on agency arguments and also the idea that once the group acts with all the powers of the Board, it becomes the Board and is subject to the full quorum requirement.

Later in the argument, Justices Scalia, Alito, and Chief Justice Roberts expressed serious policy concerns about two-member panels.  They first ascertained that any member of the Board could typically review draft opinions before they became final or sit in on any panel he or she chose, effectively allowing parties the chance to have their case considered by the entire Board.  The current situation, they implied, thus precludes what was once significantly more expansive review.  Katyal, while acknowledging that a two-member Board was not ideal, nevertheless argued that was better than nothing during a “vacancy crisis.”

Justices Kennedy and Scalia also attempted to understand the scope of New Process Steel’s agency argument, wondering whether all action of the Board, including the operation of regional offices and the payment of salaries, would become inoperative once membership of the Board fell below three.  Justice Kennedy later questioned Katyal about the special rule excepting government agencies from traditional principles of agency law.