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ICYMI: Packing the NLRB

                                

One hallmark of the Obama Presidency is its habit of running roughshod over Congressional prerogatives. A test of that arrogation of power comes Wednesday when the Administration has to defend its imperial treatment of recess appointments in the D.C. Circuit Court of Appeals.

We have long supported such appointments as long as they are made when Congress is genuinely in recess. Yet in January Mr. Obama named three new members of the National Labor Relations Board along with Richard Cordray as the head of the Consumer Financial Protection Bureau when the Senate wasn't in recess. While Congress was conducting pro forma sessions, Mr. Obama pulled this end run around the Senate's advice and consent power.

In Noel Canning v. NLRB, a Washington state Pepsi bottler claims that the NLRB lacked a three-member quorum when it decided a labor case because the recess appointments were illegitimate. In order for the President to make a recess appointment, the Senate must adjourn, and under Article I, Section 5 of the Constitution neither house of Congress can adjourn for more than three days without the other's permission.

On January 4, the day Mr. Obama packed the NLRB, Congress considered itself to be in session. But the White House claimed the pro forma session didn't count because the Senate wasn't really available to do confirmations except by unanimous consent.

The Senate happens to do much of its business by unanimous consent, including confirmations of executive branch employees and even federal judges, including (then attorney and now Chief Justice) John Roberts's 2003 confirmation to the D.C. Circuit. Mr. Obama himself has signed legislation passed during pro forma sessions, including the Senate's 2011 payroll tax extender and the Airport and Airway Extension Act.

When the Administration made its NLRB appointments on January 4, the Senate had convened the day before for the first day of its new session, the January 3 session mandated by the Constitution. But here's a puzzler: Recess appointments last until the end of the next session of Congress. If the Administration thinks the pro forma sessions weren't real, why did it make the appointments after the Senate gaveled in a new session in January, thus giving them an extra year on their terms.

There's ample precedent here: In New Process Steel v. NLRB, the Supreme Court ruled in 2010 that three members were needed for a quorum. The decision invalidated the two-person judgments, and some 600 complaints that had come before the NLRB had to be reheard. In the Pepsi case, without Mr. Obama's illegal appointments, the board would not have had a quorum even to hear the complaint.

During the oral argument in New Process Steel, Chief Justice Roberts asked Deputy Solicitor General Neal Katyal if the recess power could be used to fill the open seats on the NLRB. "The recess appointment power can work in—in a recess," Mr. Katyal responded. "I think our office has opined the recess has to be longer than three days."

Both parties in Congress play politics with confirmations, and this current row began when Senate Democrats blocked some of George W. Bush's nominees. Mr. Bush retaliated with recess appointments, and Majority Leader Harry Reid responded by almost never going into recess. But Mr. Bush, the supposedly Imperial President, never tried what Mr. Obama did in redefining what constitutes a legitimate Senate recess.

On this as on so much else, Mr. Obama is exceeding his constitutional authority. If Mr. Obama gets his way, he'll have more or less vitiated the Senate's advice and consent power. He could presumably make recess appointments every weekend, or during lunch.

Liberals who once complained about Mr. Bush's use of executive power have suddenly fallen silent over Mr. Obama's power grab. The courts should restore the proper constitutional balance.

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