Union Bosses' Bad Week Just Got A Lot Worse: Obama's NLRB 'Recess' Appointments Ruled Unconstitutional

Sith Lord Chess

Let the union bosses’ whining and institutional Left’s spin begin.

Just as it was thought that union bosses’ bad week couldn’t get any worse, it just got a lot worse.


On Friday morning, a federal appeals court has agreed unanimously that Barack Obama’s “recess” appointments to the National Labor Relations Board were unconstitutional.

On January 4, 2012, Barack Obama took it upon himself to declare the United States Senate in recess and decided to make ‘recess appointments’ to the National Labor Relations Board to replace SEIU and AFL-CIO attorney Craig Becker, as well as Teamster attorney Wilma Leibman, both of whose terms had expired.

Obama’s unilateral decision to abuse his executive powers was met with an immediate outcry from Republicans, as well as other groups since the Senate was not technically in recess.

As a result, when Noel Canning lost a decision due to Obama’s union appointees at the NLRB, it appealed its case, arguing that Obama’s appointments were unconstitutional.

The U.S. Court of Appeals in Washington agree–unanimously.

via Bloomberg:

The U.S. Court of Appeals in Washington in a unanimous ruling today sided with Republican lawmakers and a canning company that challenged the appointments. The judges said the definition of “the Recess” in the Constitution’s Recess Appointments Clause is limited to the period between one Congress and the next, and that Congress had begun a new session at the time the president made the appointments.

“Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” U.S. Circuit Judge David Sentelle wrote. [Emphasis added.]


‘This Will Not Do.’

According to the Court’s decision, Obama’s Office of Legal Counsel essentially argued that the President, not the Senate, has the authority to declare that the Senate is in recess.

This argument was strongly rebuked by the Court:

The fourth and final possible interpretation of “the Recess,” advocated by the Office of Legal Counsel, is a variation of the functional interpretation in which the President has discretion to determine that the Senate is in recess. See 2012 OLC Memo, supra, at 23 (“[T]he President therefore has discretion to conclude that the Senate is unavailable to perform its advise and-consent function and to exercise his power to make recess appointments.”). This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. The checks and balances that the Constitution places on each branch of government serve as “self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other. Buckley v. Valeo, 424 U.S. 1, 122 (1976). 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. The intersession interpretation of “the Recess” is the only one faithful to the Constitution’s text, structure, and history. [pp 25 & 26, emphasis added]


Now that the Court has ruled that Obama’s NLRB was appointed unconstitutionally, the Administration may choose to appeal it to the Supreme Court.

According to the Associated Press:

The Obama administration is expected to appeal the decision to the U.S. Supreme Court, but if it stands, it means hundreds of decisions issued by the board over more than a year are invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

However, as Moe Lane noted:

I know what you’re thinking, Barry: You’re thinking Does the Other Side have four Supreme Court Justices in its corner, or five? Well, to tell the truth, in all this excitement I kind of lost track, myself.

But being as there’s about a year’s worth of rulings at stake – rulings that will make your allies very mad if they’re all thrown out – you’ve got to ask yourself one question: Do I feel lucky?

Well? Do ya… punk?

Though even a close SCOTUS decision is probably unlikely, we should know soon if Barack Obama wants to try his luck before the Supremes.


“Truth isn’t mean. It’s truth.”
Andrew Breitbart (1969-2012)

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Cross-posted on LaborUnionReport.com

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