Freedom Line Blog

New York City Mayor Michael Bloomberg apparently doesn’t like it when others employ his own nanny-state tactics against him.  In his remarks yesterday after a federal court ruled the NYPD’s “Stop, Question and Frisk” policy unconstitutional, Bloomberg used some awfully sloppy and ironic language, considering his infamous habit of micromanaging citizens’ Second Amendment rights, their soft drink choices, their salt intake and so on:

“Let’s be clear.  People have a right to walk down the street without being targeted by police.  And we have a duty to uphold that right, which is why I’ve signed a law banning racial profiling, and it’s why the NYPD has intensified its training around Stop-Question-Frisk.

But people also have a right to walk down the street without being killed or mugged.  And for those rights to be protected, we have to give the members of our Police Department the tools they need to do their jobs without being micromanaged and second-guessed every day by a judge or a monitor.”

I certainly agree with Bloomberg that yesterday’s decision was incorrect, unwise and not supported by the applicable law or facts.  That said, it would be nice if he would practice what he suddenly preaches.  Hopefully, this moment will serve as a corrective for his own micromanagement inclination while the court decision itself heads down the road toward reversal.

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.