One of the big Washington stories from the past Christmas season was President Obama’s stunning assertion of the right to decide, by fiat, whether Congress is in session or not. As the Democrats have done many, many times in the past, Senate Republicans were holding pro-forma sessions through the holiday, to prevent the President from making recess appointments. With a wave of his imperial baton, the President declared them out of session, and shoved his non-recess recess appointments through.
The marquee outrage was the new super-czar of the Consumer Financial Protection Bureau, Richard Cordray, but Obama also muscled three new commissioners onto the National Labor Relations Board. This gave the NLRB enough members to achieve a quorum, and in due course they issued a ruling against a family business in Washington State - where, as you may recall, Boeing executives found the environment so hostile to business that they decided to open their new Dreamliner production line in South Carolina.
The NLRB’s new target, Noel Canning, decided to challenge their authority to force the company into collective bargaining with unions, on the grounds that Obama’s non-recess recess appointments were illegal. The U.S. Chamber of Commerce supported the suit, charging that because these new members were illegally appointed, “the Board lacks the statutorily required quorum of at least three members to adjudicate disputes and issue rules.” Furthermore, “according to the Chamber, shoehorning these nominees into office in this controversial way has thrown the legal validity of every decision of the Board into question, adding even more uncertainty to the economic climate.”
As reported by the Washington Examiner, Senate Republicans joined the suit on Tuesday, and made a truly awesome choice for their legal representation: none other than Miguel Estrada, who is not only an accomplished advocate with twenty Supreme Court cases under his belt, but “in 2002 became the first-ever judicial nominee to be torpedoed by a Democratic filibuster.” Of course, using procedural tactics to block nominations was perfectly acceptable back then, because…
… hey, did you know Mitt Romney’s wife is an out-of-touch stay-at-home mom, and he drives around with a dog strapped to the roof of his car? [This distraction brought to you by the DNC and Obama For America. We now return you to your regularly scheduled blog post.]
Senate Minority Leader Mitch McConnell laid out the stakes in the case, which his caucus felt was their best opportunity to bring a legal challenge to the President’s appointments: “The president’s decision to circumvent the American people by installing his appointees at a powerful federal agency, when the Senate was not in recess, and without obtaining the advice and consent of the Senate, is an unprecedented power grab. We will demonstrate to the court how the president’s unconstitutional actions fundamentally endanger the Congress’s role in providing a check on the excesses of the executive branch.”
In case anyone’s keeping score, an extension to President Obama’s treasured “payroll tax cut” was passed during the same pro forma Senate session he would later declare invalid. I imagine that will come up during the legal proceedings. Maybe the President’s new power to declare the Senate out of session can actually be applied on an hourly basis – he can decree them in session at 10:00 AM, but out of session between 11:00 AM and noon, giving him enough time to squeeze some “recess appointments” in, before he decrees them back in session to pass legislation he likes.
