Quotes of the day

Today, the U.S. Court of Appeals for the DC Circuit issued a decision finding that the Jan. 4, 2012 recess appointments of three members to the National Labor Relations Board were invalid. In response, Chairman Mark Gaston Pearce issued the following statement:

“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.”


Pearce, in short, is indicating that the NLRB’s strategy is to act as if the court’s ruling that the appointments were unconstitutional somehow only applies only to the particular case that went before the Appeals Court and hope that the White House can get the Supreme Court to quickly review the case.

It’s a pretty brazen strategy, but consistent with a broader administration strategy to simply ignore the court’s ruling.


Under the court’s decision, 285 recess appointments made by presidents between 1867 and 2004 would be invalid.

The Justice Department hinted that the administration would ask the Supreme Court to overturn the decision, which was rendered by three conservative judges appointed by Republican presidents. “We disagree with the court’s ruling and believe that the president’s recess appointments are constitutionally sound,” the statement said…

If the ruling stands, it would invalidate more than 600 board decisions issued over the past year. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down.


In the current atmosphere of partisan gridlock, which often involves thwarting of presidential nominations, the ruling provides a major new opportunity for a minority in the Senate to deny the President the authority even temporarily to put a new government officer to work in a vacant spot. When a vacancy arises while Congress is in session, and the Senate does not act on it, the President will not be able to fill it during the next time the Senate takes a break. The ruling came one day after the Senate chose not to make a major change in its filibuster rule, which is the main weapon of a Senate minority seeking to challenge presidential action…

The ruling, however, is not confined to the situation at the NLRB. As an interpretation of the Constitution’s words dealing with temporary government appointments, it would extend to all federal agencies whose officers are nominated by the President and require Senate approval — including federal judges. In practical effect, the decision basically will confine presidents to making government appointments in the usual way: sending nominees’ names to the Senate, and then letting the Senate proceed — or not — to give its “advice and consent” to such nominations.


The judges observed that no president from George Washington through Abraham Lincoln ever attempted to make an “intrasession” appointment (that is, an appointment when Congress was in session) without the advice and consent of the Senate, as Obama attempted to do. From the end of the Civil War through the end of World War II, only three such appointments were attempted. In the judges’ words, “[I]t is well established that 80 years after the ratification of the Constitution, no President [had] attempted such an appointment, and for decades thereafter, such appointments were exceedingly rare.”


Possessing only the dimmest memory that I’d written about the recess-appointment controversy before, I looked it up to remind myself of the details. Only then did I remember that … oh dear … I thought Obama’s recess appointments were probably unconstitutional at the time. Reviewing my arguments, and the facts, I find myself persuaded all over again. (For a contrasting view, read my TNR colleague Jon Cohn’s defense of the recess appointments.)

The Senate was not technically in recess. It was being kept by mischievous Republicans in a kind of self-induced coma over the Christmas holiday break, expressly to block Obama from making any recess appointments. So Obama basically said, “If it quacks like a recess, it’s a recess, so here come my recess appointments.” The problem with that approach is that there were comparable periods when the Senate was non-functional but clearly not in recess–say, weekends. Weekends quack like a recess too! Was Obama implicitly giving himself the power to make recess appointments 52 weeks a year? That didn’t sound kosher to me. Most troubling of all, nobody seemed able to come up with any persuasive precedents.


Here’s the deal. Senate Republicans have decided that the way to prevent regulations they don’t like is to simply refuse to confirm any nominees to any agency they don’t like. They’ve done it with the Bureau of Alcohol, Tobacco and Firearms. They’ve done it with the National Labor Relations Board. And they’ve done it with the Consumer Financial Protection Bureau. “We don’t like these agencies so we’re going to starve them of people and resources.” It’s a classic Republican play…

The way to handle obstructionist senators isn’t by empowering the executive beyond constitutional limits. It’s for non-obstructionist senators to work within the rules to find solutions that allow the body to move forward on the people’s business despite the bad faith of a vocal minority.


Over the past year, many companies and conservatives have criticized Obama’s NLRB for issuing a slew of sweeping pro-labor rulings. But Kate Bronfenbrenner, a labor expert at Cornell, says the past year hasn’t been particularly unusual. Labor boards appointed by Democratic presidents tend to look more favorably on workers and unions, while those appointed by Republican presidents tend to side with employers.

“It’s always been a political agency,” she says, “and it always swings back and forth.”

Bronfenbrenner adds that if the D.C. Circuit Court’s ruling is upheld and the NLRB does have to shut down — and if it sees a year’s worth of work invalidated — that could make the agency even more dysfunctional in the years ahead. That’s because all of those cases from 2012 will have to be reheard, and new cases will keep piling up. “If and when the Senate finally does confirm new appointees, the new board will have to confront a huge backlog.”


Our constitutional-law-professor-in-chief ignored this advice and is now hoist on his own petard. He is worse off than he was when he started, because the court’s ruling invalidates all appointments made during recesses that occur in the middle of a Senate session…

The third setback for the administration is that many of the actions of the Consumer Financial Protection Board (CFPB) are in doubt as well. Richard Cordray, who received a purported recess appointment on the same day and in the same manner as the three invalid NLRB members, would have been the first head of that agency. Thus, no prior head of the agency could have made lawful delegations of authority. Moreover, the CFBP’s organic statute provides that no acting head may issue regulations. The eventual effect of today’s decision on pending and future CFPB actions will take many months to sort out, but the rest of the D.C. circuit is bound by the ruling today unless the entire court reverses it.

Our unilateral president must take his unilateral medicine.


Consider the utter chaos caused by Obama’s power grab. In all likelihood, the rulings in the cases above will be voided. What happens to the employee who paid money into a union as a result of one of those cases? An employer who had to pay higher wages or pay money into a union pension plan? What if an employer had to shut down because of a union contract that he never should have been forced to sign? The myriad of complications and the economic and personal dislocation could be tremendous.

This, by the way, is the very reason why the rule of law is so valuable — it provides clarity, dependability and finality. But not in the Obama era.



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