How Vacancies on the D.C. Circuit Court Are Swaying Policy in America

The court's judges are obstructing appointments to a key regulatory body. But since the Senate won't confirm Obama's own judicial picks, the appointments will stay stuck.



The Senate filibuster has been in the news as a tool by which the Republican Party is obstructing popular measures like background checks for gun purchasers. But another battle in the struggle against popular government is taking place three blocks from the Capitol at the E. Barrett Prettyman Courthouse, where the Court of Appeals for the D.C. Circuit sits. Nominations to that court, the second most important in the nation, have also been the subject of filibusters since 2008. Senate Republicans have succeeded in preventing President Obama from filling any of the four seats now open on this court. As a result, conservative judges on the court have been able to block a number of the administration's initiatives.

At this point, the D.C. Circuit ought to be called the Filibuster of Appeals.

We've read of the violence done to the National Labor Relations Board by the D.C. Circuit's December decision in Noel Canning v. NLRB. Having read that opinion repeatedly, I believe it does violence to the Constitution as well. The D.C. Circuit last year voided a Food and Drug Administration regulation requiring graphic warning labels on cigarette labels as a violation of tobacco companies' "free speech" rights -- to me, another grave misstep. And I feel the same way about the Circuit's decision this week in National Association of Manufacturers v. NLRB. In this case, three Republican nominees held that the First Amendment's right against "compelled speech" protects employers against an NLRB regulation requiring them to post a government poster notifying workers of their rights. The decision is another step on the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.

In 2011, the NLRB passed a rule requiring all employers subject to its authority to post an 11-by-17-inch poster reviewing the rights guaranteed workers by the National Labor Relations Act -- which include the right to join and form unions and to advocate for better wages and working conditions. (The poster also informers workers of their right to "[c]hoose not to do any of these activities, including joining or remaining a member of a union.")

The poster clearly indicates that it is an official government notification rather than the view of management. Nonetheless, industry groups argued that the company's First Amendment rights are compromised by being "forced" to speak against its will. This is a remarkable proposition. Governments routinely require employers to post various notices, ranging from a requirement of hand-washing in toilets to notifications of civil-rights protections. And courts have upheld them in the past. In fact, as the D.C. Circuit itself admits, that very court in 2003 upheld an executive order from President George W. Bush requiring government contractors to post a notice telling employees of their rights not to join a union. "[A]n employer's right to silence is sharply constrained in the labor context, and leaves it subject to a variety of burdens to post notices of rights and risks," it said.

Dude, that was totally then. The panel offers this (to me) completely unpersuasive distinction: the earlier case dealt only with the question of whether the President could require such a notice; the opponents of the rule argued that it was preempted by the National Labor Relations Act, which sets up the NLRB. The new rule was promulgated by the NLRB itself, the court said, and that changes the First Amendment calculus.

The panel relies on two First Amendment cases to support its decision -- West Virginia State Board of Education v. Barnette and Wooley v. Maynard. In Barnette, the Court held that the state of West Virginia could not expel Jehovah's Witness children from school if they refused to stand with their hands over their hearts and recite the Pledge of Allegiance. Justice Robert Jackson memorably wrote in Barnette, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein" In Wooley, the state of New Hampshire jailed a Jehovah's Witness for putting tape over the motto "Live Free or Die" on a state license plate. The Wooley Court reversed the conviction, reasoning that

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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