In late April the Obama Administration finally got around to offering a legal response to a stern rebuke it had received from the U.S. Court of Appeals for the D.C. Circuit back on January 25.
Early in his first presidential term, Barack Obama began using and abusing his constitutional authority to make “recess” appointments to avoid seeking the U.S. Senate’s advice and consent as he packed the powerful National Labor Relations Board (NLRB) with radical proponents of monopolistic unionism.
But a little more than three months ago a panel of three judges on the D.C. Circuit cried halt. Echoing several arguments previously made before the federal bench by a National Right to Work Legal Defense Foundation attorney, the panel unanimously found that the President had violated the Constitution in making three “recess” appointments to the NLRB in early 2012.
The panel found that the President had exceeded his constitutional authority for more than one reason. To start with, all the judges agreed that the Senate was not actually in recess when the so-called “recess” appointments were made. Two of the three judges also ruled that only “intersession” recess appointments are valid. As John Berlau, an economist with the Competitive Enterprise Institute, explains in the commentary linked above, “intercession” recess appointments occur “between sessions of Congress” rather than during breaks within a single session.
The D.C. Circuit’s conclusion regarding intercession recess appointments appears to be well-grounded in the text of the Constitution, but it is also in seeming conflict with several other federal court rules and in clear conflict with longstanding practices by the executive branch.
In announcing last month the Obama Administration’s filing of a brief with the Supreme Court appealing the D.C. Circuit’s “recess” appointment ruling, known as Noel Canning v. National Labor Relations Board, Solicitor General Donald Verrilli Jr. pretended that the entire decision was predicated on the majority’s finding that intrasession recess appointments are impermissible.
Berlau cites Verilli’s complaint that Noel Canning “repudiates understandings of the Recess Appointment Clause that have been maintained and relied on by the Executive for most of the Nation’s history.”
Mainstream media accounts have overwhelmingly accepted the Obama Administration’s spin that the D.C. Circuit ruling is an outlier.
But the fact is, even if the Supreme Court chooses to reject the persuasive textual arguments made by the Noel Canning majority and bow to the historical fact that many Presidents have made intrasession recess appointments before without ever being successfully challenged for doing so, President Obama’s three 2012 recess picks will still in all likelihood be found to be illegal.
Berlau explains that the Supreme Court does not have to prohibit all intrasession recess appointments to “invalidate Obama’s unprecedented use” of such appointments:
[I]t’s difficult to see the high Court taking the case, and then refusing to put any limits on [the President’s] power to unilaterally make appointments without the Constitution’s required “advice and consent” of the Senate. Senators of both parties do wish to take bathroom breaks without the fear that [the President] will suddenly declare a “recess” and appoint important officials without their say.
Of course, it is highly unlikely the President ever would have made his unconstitutional “recess” appointments to the NLRB in the first place had not top union bosses egged him on to abuse his authority.
If the Supreme Court agrees to hear the Obama Administration’s appeal of Noel Canning, the strong probability, despite the current spin of credulous reporters, is that the President will get slapped down by a lopsided majority of the justices, if not unanimously. And Big Labor will deserve a substantial share of the blame for having prompted the Obama Administration to break the law.