Back in January of last year Barack Obama made three recess appointments to the NLRB, which would not normally be newsworthy if it weren’t for the fact that the Congress was not in recess.
The Congress was using a political gimmick known as pro forma: the Congress adjourned but they held the Congress open, so the Congress was not in recess and the president did not have the authority to name appointees to these positions because some members of the Congress meet every few days to conduct “business.”
This may be a gimmick but it is nothing new and in fact the Democrats used a pro forma Congress to prevent President Bush from making recess appointments. The difference is that President Bush honored the pro forma Congress while Barack Obama did not. I would guess that if President Bush had tried this there would have been calls for impeachment from the left.
However, this met with very little consternation with the exception of conservative and libertarian blogs and websites, but today an Appeals Court ruled that Barack Obama’s non-recess recess appointments were indeed unconstitutional and an “abuse of power,” and according to this article the court has removed the appointees from their positions and voided all actions they have taken since they assumed power.
In Noel Canning v. NLRB, the U.S. Court of Appeals for D.C. Circuit held today that Obama’s three recess appointments are in fact unconstitutional. As such, the three seats on NLRB were never legally filled. Thus NLRB only had two members, while the law requires three members on the five-member Board in order to have a quorum to conduct business or issue orders.
The D.C. Circuit therefore concluded that all NLRB orders issued since these recess appointments were made are entirely void, and NLRB has no power to act at all unless and until the Senate votes to confirm Obama’s nominees.
Jay Carney addressed the decision today and stated the White House strongly disagreed with the decision and called it “unprecedented.” And he is right, this is an unprecedented decision, but the reason it is unprecedented is because this is the first time a president has so brazenly tried to usurp the power of the Congress by making recess appointments when the Congress is not officially in recess.
This is now likely headed to the Supreme Court and I would guess the president will win a stay of the decision and the nominees will be allowed to hold onto their positions until a final decision is rendered.
Normally I would bet anything that the Supreme Court would uphold this decision because it seems like a no-brainer but with the Chief Justice seemingly more concerned with his legacy and how he is portrayed in the media with the Obamacare decision rather than with upholding the constitution I would say that all bets are off.
This is a major victory for the constitution, for now…..
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