January 29 2013

NLRB to Federal Court: Drop Dead

Charlotte Hays

There is something to be said for doing what you please come hell or high water. But sometimes this flouts the law.

That appears to be the course of action the Obama administration is going to take in light of a unanimous ruling by a panel of the D.C. Court of Appeals that President Obama made “recess” appointments that are unconstitutional.

The appointments were to the National Labor Relations Board, which under the Obama administration, has been particularly active harassing businesses. The Board has decided to “respectfully” disagree with the ruling and carry on. The Wall Street Journal has a good editorial on this today.

It seems to me that the NLRB’s brazenness encapsulates what the GOP has been up against on Capitol Hill: an administration that is going to do what it pleases without compromise or, in this case, without respect for the Constitution.

Conservatives who live and breathe politics understand this, but I don’t think the general public does. One reason is that the GOP has yet to find a way to talk to the public about what is going on in Washington.

A second reason is that the media simply won’t report accurately about the Obama administration. For example, this Reuters story gives the impression that recess appointments in general are under assault by the court. The Obama administration, if all you have is the Reuters take, is going to court to protect this tradition.

Nothing could be further from the truth. The question being tested isn’t whether recess appointments are legal—it’s whether President Obama made “recess” appointments when the Senate was actually in session. The Senate was in pro forma session. Which branch of government gets to determine when the Senate is in session?

The ruling made this crystal clear:

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….

The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government. In light of the extensive evidence that the original public meaning of “happen” was “arise,” we hold that the President may only make recess appointments to fill vacancies that arise during the recess.

So what the nation may be facing is a constitutional crisis with an administration that won’t back down on one side and a GOP that doesn’t know how to frame the issues on the other.

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