Tag: National Labor Relations Board

The Man Who Can’t be King

SCOTUS again today. The Court struck down — unanimously — the President’s “recess” appointments to the National Labor Relations Board. I wrote about this before. Congress was in pro forma session and refusing to consider the President’s appointments to various agencies. The President argued they were effectively in recess and appointed people anyway. The Court has now unanimously struck that down with Scalia basically trashing the entire idea of recess appointments as an anachronism. I agree.

This will invalidate some or perhaps all of the decisions made by the NLRB over the recent past. I expressed concern about this before but as hist_ed pointed out, those decisions were illegal (and some were in limbo anyway, pending this case).

For those of you counting: according to Ilya Shapiro, this makes twelve times in the last two and a half years that the Court has unanimously rejected the Obama Administration’s expansive view of federal and executive power. And the liberals still think we’re crazy when we say Obama is over-reaching.

The Court in Recess

Yesterday, the DC Court struck down several of President Obama’s recess appointments:

In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago.

The ruling was a blow to the administration and a victory for Mr. Obama’s Republican critics — and a handful of liberal ones — who had accused him of improperly asserting that he could make the appointments under his executive powers. The administration had argued that the president could decide that senators were really on a lengthy recess even though the Senate considered itself to be meeting in “pro forma” sessions.

Recess appointments are intended for when Congress is out of session and there is a dire need. They are not intended to bypass the Congress, even when said Congress are acting like idiots and refusing to do their Constitutional duty. I commented on this a year ago. While chastising the Republicans for refusing to have hearing on necessary appointments, I said:

All that having been said, two wrongs do not make a right. The Democrats pulled this pro forma crap too. Had Bush responded this way, the halls of Congress would have been filled with the sighs of Democrats fainting from such an egregious abuse of the process. Barack Obama, as Senator, was not exactly screaming to end filibusters when he could have done something about it (he was not part of the Gang of 14).

All sides are acting like spoiled little children, playing a game of “he started it.” It’s shit like this that makes me go up to Washington with a 2×4 and start whomping any Senator who gets within range. I don’t give a shit who started it. It needs to stop.

Violating the rules again is not the way to stop it, though. The Republicans got through this when Bush was President by finding Democrats who would let judicial candidates through. Scott Brown, at least, has indicated he would allow votes to proceed and I’m certain other Republicans could be cajoled or shamed into it.

I am nervous about the potential consequences of this decision (actions taken by recess appointees could be ruled invalid, creating complete legal chaos). I also suspect this will go the Supreme Court before it’s decided once and for all (the 11th Circuit previously upheld Bush’s recess appointments). It basically removes the President’s power to make recess appointments since Congress is basically always in at least pro forma session these days. But it seems like the Courts are going to force our legislators and our President to act like adults and actually go through the Constitutional process that is their obligation and duty.