On January 4th of last year, President Obama decided to thumb his nose at the United States Senate. He purported to recess-appoint Richard Griffin and Sharon Block to the National Labor Relations Board (NLRB) despite having nominated them only a few weeks earlier and while the Senate was in on-going pro-forma sessions. It was an unprecedented power grab by the Executive Branch, one that sought to tell a co-equal branch of government when it was and was not in session. If left unchecked, it would have forever altered the checks and balances established in the Constitution over the political appointment process. The president does not have unilateral appointment authority. His power of appointment is shared with the Senate: the president nominates, the Senate confirms. This prevents the development of a presidential spoils system and the appointment to high office of persons who, in the Framer’s words, are “unfit characters.”
While recess appointments during the sessions of a particular Congress have been made with increasing frequency by some modern presidents, never before has one done so during a three-day break in on-going Senate session. As the U.S. Court of Appeals for the D.C. Circuit said in its historic decision issued Friday, if the president can recess appoint a person under these circumstances, what would prevent a president from making a recess appointment over a one-day holiday and during a Senate lunch break? It was President Obama’s blatant abuse of power that invited the D.C. Circuit Court decision, which reasserted the Senate’s role in the nomination process and declared that the only vacancies a president can fill without Senate confirmation are vacancies that “happen during the recess” of the Senate – that is, between its sessions.
President Obama knew what he was doing when he pushed the envelope and exercised authority he did not have. Lest we forget, he taught constitutional law at the University of Chicago Law School and served in the Senate before seeking the presidency. Nevertheless, he proceeded with this blatantly unconstitutional action. The intended beneficiaries of these recess appointments were not the workers or businesses which the NLRB has authority over. Instead, the beneficiaries were the Big Labor bosses who pumped hundreds of millions of dollars into the president’s re-election and that of his allies on Capitol Hill, and who wanted hyper-partisan union advocates serving their interests while on this important government agency. And they have not proven a disappointment to union bosses.
What sets our nation apart from others is the wisdom of our Founding Fathers and their ability to draft a document that remains as relevant today as it was more than 200 years ago. They established three branches of government and a system of checks and balances which, while not perfect, restrains one branch from usurping the power of another and infringing upon the liberties of the American people. The Framers of the Constitution considered the very kind of unilateral appointment authority exercised by President Obama here as “the most insidious and powerful weapon of eighteenth century despotism.” In the decision issued last week, the judicial branch weighed in and reined in a sitting president of the United States with a historic ruling saying his recess appointments were unconstitutional. If the U.S. Supreme Court affirms the conclusion reached by this highly-respected circuit court, every case the Board has decided since January 31, 2012, will be void ab initio, that is, as if they had never been issued. In the meantime, all Board orders appealed to the D.C. Circuit will likely be denied enforcement.
At stake are over 200 published decisions and more than 450 unpublished decisions. As the New York Times reported, “The National Labor Relations Board has been thrown into a strange legal limbo – with the possibility that more than 300 of its decisions over the last year could be nullified – as a result of a federal appeals court ruling on Friday that President Obama’s recess appointments to the board were invalid.”
Some of the most egregious decisions by this Obama Board will likely be set aside. They include the requirement employers provide union bosses with witness statements obtained during workplace investigations, requiring businesses to continue to deduct union dues even after the collective bargaining contracts have expired and the Board’s assertion of jurisdiction over public charter schools. The circuit court’s ruling will also slow the NLRB from undermining the secret ballot and requiring private businesses to provide Big Labor bosses with access to private employee contact information.
The D.C. Circuit Court’s decision was a victory for America’s workers and businesses, and sends an important message to President Obama, who as the Wall Street Journal editorial board has written, has “shown increasing contempt for the constitutional limits on his power.”