NLRB Court Decision: A Loss for Obama, A Win for RealClearPolitics

As Troy Senik noted earlier today, a federal appeals court ruled that President Obama violated the Constitution when he made two appointments – which he falsely called “recess” appointments -  to the the NLRB.

Even the New York Times is reporting this story straight. Any reasonable reader will conclude that Obama really did violate the Constitution.

The best analysis of this issue, I believe, was written a year ago by the Manhattan Institute’s Diana Furchtgott-Roth and published at the web site, RealClearPolitics. RealClearPolitics, I believe, is gradually becoming the most prestigious place for an op-ed to be published.  Furchtgott-Roth’s piece will help cement that prestige.

Furchtgott-Roth first notes the justification Obama gave for his appointments:

On January 4, the president declared, “But when Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as President to do what I can without them.”

Note that Obama did not try to claim that the appointments were constitutional. Instead, he argued that they were necessary because not doing so “hurts our economy.” After doing this, I don’t see how Obama can claim to be a lover of the rule of law. Even if we accept his premise, it means that in his mind he had a choice, (i) hurt the economy, or (ii) violate the Constitution.  He chose to violate the Constitution.

Furchtgott-Roth also notes:

The NLRB appointments are more troubling because Congress only received the nominations of Democrats Sharon Block and Richard Griffin on December 15, 2011. Congress did not refuse to act. It could not consider the nominees because relevant paperwork was not submitted. The Committee still has not received financial or tax data, biographic information, records of campaign contributions, or information about potential civil or criminal judgments or conflicts of interest.

With the predictable expiry of the term of recess-appointed NLRB member Craig Becker in December, the Board lacked a quorum and was unable to conduct business. Which raises the question: Why didn’t the president send the nominations of Ms. Block and Mr. Griffin in the summer or fall?

The Republican appointee, Terence Flynn, was nominated in January 2011, and his paperwork is complete. If Mr. Flynn had been confirmed, the NLRB would have had a quorum. But that would have left the NLRB with two Republicans and one Democrat, a situation unthinkable to both Mr. Obama and the Democrat-controlled Senate.

Mr. Obama’s NLRB “recess” appointments are a challenge to Congress and a payoff to his union supporters, who provide a major share of the contributions he needs for his presidential campaign. Among other actions, the NLRB has attacked Boeing for opening a new plant in South Carolina, a right-to-work state, and is requiring all employers to place oversize posters in workplaces to inform workers of their right to unionize (but not of their right to decertify a union).

Mr. Obama believes that he no longer needs to seek the advice and consent of the Senate to appoint officials. He can just nominate them at the 11th hour, skip the required paperwork, complain when they aren’t confirmed, then announce a “recess” appointment when the Senate isn’t on recess. Having that power, why would he, or any future president, bother with the Senate?

Hats off to the federal appeals court for its decision, Furchtgott-Roth for her excellent and prescient analysis one year ago, and RealClearPolitics for publishing her piece.

  1. flownover

    Not to be overly cynical, but why this red herring dumped on our Friday stoop ?

    Mr Groseclose, would you deign to opine ?

  2. flownover

    And after that, can we do the Menendez bow shot from Hagel and company ?

  3. Dave Carter
    C

    Tim, have you seen this, from the Washington Examiner?  Quoth NLRB Chairman Mark Gaston Pearce: 

    The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

    In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.

    If I’m reading this correctly, the NLRB plans to press forward regardless of the court’s finding, thereby passing its own judgement on the constitutionality of the ruling.  Doesn’t seem right to me somehow…

  4. Trace

    Hooray for the Good Guys!

  5. Pilli
    Dave Carter: Tim, have you seen this, from the Washington Examiner?  Quoth NLRB Chairman Mark Gaston Pearce: 

    The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

    In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.

    If I’m reading this correctly, the NLRB plans to press forward regardless of the court’s finding, thereby passing its own judgement on the constitutionality of the ruling.  Doesn’t seem right to me somehow… 

    So the NLRB gets to decide who sits on its board now?  Amazing!

    Is this going to be the straw that broke the camel’s back?  Nah, the Senate won’t make any waves.  Nobody listens to the House.  These aren’t the droids you are looking for…move along.

  6. Crow

    Shorter NLRB: We are the ones we’ve been waiting for! We are both check and balance!

  7. Whiskey Sam
    Dave Carter: Tim, have you seen this, from the Washington Examiner?  Quoth NLRB Chairman Mark Gaston Pearce: 

    The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

    In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.

    If I’m reading this correctly, the NLRB plans to press forward regardless of the court’s finding, thereby passing its own judgement on the constitutionality of the ruling.  Doesn’t seem right to me somehow… · 12 minutes ago

    It’s time to revive the practice of tarring and feathering.

  8. Bryan G. Stephens

    It seems to me that the NLRB moving ahead can be ignored based on this ruling. Why can’t a company ignore them and point to this ruling?

  9. Sweezle

    This is one of the two recent events to perk me up and help my political enthusiasm rebound. I am not surprised the federal appeals court ruled against Obama on this. And I welcome the possibility of the two remaining recess appointees to be ousted and for all the decisions this Board has made to be vacated.

    The second piece of news is the move by the Republican leadership in “winner take all” states to introduce a fairer way for their states to record votes. Perhaps a county by county “winner take all” instead of lumping all the counties in the state into one electoral pot? That would reduce the voting impact of larger urban cities in the electoral process. And it would allow rural counties to have their voices heard as well.

  10. Larry3435

    Technically, the NLRB is correct that a court decision is only binding in the case the court is hearing.  If you ignore the fact that courts pay attention to precedent and the doctrine of stare decisis, the NLRB is not in contempt of court.  It’s contempt for the rule of law and the American people, however, is another thing altogether.  

    By the way, since the appointment of these NLRB members was not valid, I hope they will return their pay for the last year (but I’m not holding my breath).

    This is not new, by the way.  The NLRB has long taken the position that it is not required to apply the ruling of a particular Circuit Court outside of that Circuit.  Which is not completely unfair, since Circuit Courts often disagree.  But it has never ignored a ruling saying that it has no legal authority to act at all.  

  11. Indaba

    Good news.

  12. Donald Todd

    When O sacks congress and the courts, this decision won’t make any difference at all.  When O sacks congress and the courts, the constitution won’t make any difference.  

    And the decision and the constitution do not make any difference to the Democrats anyway.

  13. 3rd angle projection

    I wouldn’t be so quick with that opinion. They found Obama to be in violation of the Constitution. This is not trivial. This is a big win.

    Larry3435: Technically, the NLRB is correct that a court decision is only binding in the case the court is hearing.

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