Human Events Blog

Federal appeals court rules Obama’s recess labor board appointments are unconstitutional

In a major blow to fans of the new “unitary executive” style of government, the Associated Press reports that President Obama’s recess appointments to the National Labor Relations Board have been ruled unconstitutional by a federal appeals court.

The Hill reported on the drama surrounding these appointments last January:

The NLRB announcement came a few hours after the president made a public show of another recess appointment, for Richard Cordray, the new director of the Consumer Financial Protection Bureau. Republicans reacted with fury to that appointment, which the White House promptly ignored by making three more.

Senate Minority Leader Mitch McConnell (R-Ky.) blasted the president’s decision and said he is stripping the Senate of its oversight powers, since the NLRB nominees had not been vetted in a hearing.

“What the President did today sets a terrible precedent that could allow any future President to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress,” McConnell said in a statement.

The NLRB appointments are a huge victory for Obama’s union allies, which urged the president to use any means necessary to keep the NLRB functioning. Without additional members, the NLRB would have lacked the three-member quorum needed to issue rules and regulations.

Unions had been frustrated by the president’s moves on trade and regulations in 2011, and the NLRB appointments could help wipe the slate clean ahead of the 2012 campaign.

But the move also puts Obama at odds with business, which has clashed repeatedly with the NLRB in recent months. Bruce Josten, the chief lobbyist for the U.S. Chamber of Commerce, denounced the recess appointments as political favoritism and said they will “further poison the well” at the labor board.

Well, as long as Obama got re-elected, that’s all that really matters.  The funny thing is that the exact same people who currently adore the unitary executive model used to complain about it, and would have gone berserk if Obama’s predecessors had tried unilaterally declaring that Congress was not in session during specific hours of a particular day, so he could stuff the bureaucracy with recess appointments.  What do you know – it turns out you can’t do that.

Update: Response to the ruling from Senator Mitch McConnell, along with a bit of perspective on what the decision means:

“The D.C. Circuit Court today reaffirmed that the Constitution is not an inconvenience but the law of the land, agreeing with the owners of a family-owned business who brought the case to the Court,” Senate Republican Leader Mitch McConnell said.

McConnell and 41 of his Senate colleagues filed an amicus brief in the case, Noel Canning v. NLRB, challenging the constitutionality of the NLRB appointments last year. The suit was brought by Noel Canning, a local, family-owned business in Washington State that bottles and distributes soft drinks. The company challenged the NLRB’s determination that it must enter into a collective bargaining agreement with a labor union.

In its ruling today, the Court said, “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”

The Court determined that: “An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”

“For the same reasons, this decision now casts serious doubt  on whether the President’s ‘recess’ appointment of Richard Cordray to the Consumer Financial Protection Bureau, which the President announced at the same time, is constitutional,” McConnell said.

McConnell isn’t being hyperbolic about the tone of the decision, which is quite testy in tone, and talks in no uncertain terms about how President Obama’s executive over-reach would “eviscerate the Constitution’s separation of powers.”  Now it’s the decisions of the unconstitutionally staffed NLRB that might be eviscerated, along with anything Cordray has done at CFPB.  The whole business of “recess appointments” is jeopardized by this decision; they might just get ratcheted back to something like their original intention, for use only in emergency situations that occur between Congressional sessions.  There could be a whole lot of eviscerating going on if the White House takes this case to the Supreme Court.

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