Freedom Line Blog

It looks like there could be a Supreme Court showdown over whether President Barack Obama violated the Constitution when he appointed members to the National Labor Relations Board back in January.

All 45 Senate Republicans have filed a friend of the court brief asking the justices to uphold the D.C. and Second Court’s rulings that the president did just that. The Obama administration, of course, disagrees and wants to high court to reverse.

The constitutional question to be answered is whether the Senate or the President gets to decide when the former is in recess, and thus when the President can make recess appointments to bypass the Constitution’s advice and consent requirement.

Important? You betcha.

As the NLRB case shows, if the President gets to decide when the Senate is in recess then the advice and consent requirement becomes effectively a voluntary procedural hoop that the President can choose to ignore whenever a nominee can’t get the necessary votes for confirmation. Such a development would effectively nullify the Senate’s only real quality control measure in staffing the executive branch.

There’s also an added bonus. If the Court accepts the case, it will be one of the few decisions that deal with actual constitutional text, instead of the “penumbras” and other implied meanings that the justices have imported over the years.

Then again, that may be why this case gets snubbed.

H/T: Politico

It’s sad commentary on our current political state that the Obama Administration must be reminded that the Senate has to actually be in recess for it to attempt a “recess” appointment.  One would expect a former law professor to possess a better working knowledge of the Constitution, but alas.

In a welcome and important ruling this morning, the U.S. Court of Appeals for the D.C. Circuit – effectively the nation’s second-highest court – held that the Obama Administration acted illegally when it attempted to place three new members on the National Labor Relations Board (NLRB) without Senate consent.  Under Article II, Section 2 of the U.S. Constitution, a President may appoint “Officers of the United States” subject to “Advice and Consent of the Senate.”  It adds, however, that, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Here’s the problem.  In a scheme to avoid confirmation hearings and votes, Obama attempted to place three members on the NLRB while “the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.”  Thus, the Senate wasn’t in “recess.”  In fact, other acts by the Obama Administration acknowledge that fact.  As just one example, that period is when the reduced payroll tax was extended with Obama’s approval.

Accordingly, the Court didn’t take kindly to Obama’s maneuver:

An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.  This cannot be the law.”

This is a humiliating rebuke for Obama, and it invalidates all NLRB actions dependent upon those illegal appointments.  Moreover, it effectively invalidates actions by other administrative agencies similarly dependent upon such appointments.  The concept of “a nation of laws, and not of men” has been vindicated today.