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.