WASHINGTON, D.C. | June 27, 2013 -
The Supreme Court has been busy making headlines this week. One decision in particular could have significant implications for America’s workplaces and our constitutional system of checks and balances. The court agreed on Monday to consider whether President Obama’s non-recess recess appointments to the National Labor Relations Board are constitutional. Education and the Workforce Committee Republican leaders John Kline (R-MN) and Phil Roe (R-TN) welcomed the news:
As we’ve said from the beginning, the Supreme Court ultimately must decide whether President Obama’s unprecedented recess appointment scheme is constitutional. While we welcome the court’s review of this matter, a final outcome is still months away. Meanwhile, the board continues to issue new decisions and exacerbate the legal uncertainty threatening workers and employers across the country. As we wait for the Supreme Court to do its work, it’s time for the Senate to do its job. The House has acted. We urge the Senate to pass legislation that will prevent the board from inflicting further harm on America’s workplaces.
An editorial in the Wall Street Journal highlights the need for congressional action to address the legal chaos surrounding the board, and explains why Supreme Court review is critical to hold the president accountable for his unprecedented power-grab:
In a week of consequential Supreme Court decisions, one of the more important is the case it decided to hear next year—a review of the constitutionality of President Obama's non-recess recess appointments. This is a chance to rein in a lawless executive poaching on the powers of Congress.
In January 2012, Mr. Obama named Richard Cordray to head the Consumer Financial Protection Bureau and three "recess" appointees to the National Labor Relations Board. Big problem: The Senate wasn't in recess when he made these appointments, which were an attempt to circumvent the Senate's advice and consent power.
In National Labor Relations Board v. Noel Canning, a Washington state Pepsi bottler challenged a subsequent decision by the NLRB on grounds that it lacked a legal quorum. The D.C. Circuit Court of Appeals agreed in January, and the Third Circuit Court of Appeals has since found that Mr. Obama's 2010 recess appointment of Craig Becker to the NLRB was also illegal.
Yet the NLRB has continued to issue rulings as if nothing has happened, some 274 since the D.C. Circuit decision. As many as 1,200 NLRB rulings could be declared illegal going back to the original recess appointments. Sixty federal lawsuits are already challenging the board's rulings.
This continues the NLRB's pattern in the Obama era of pushing Big Labor's interests regardless of the law. Courts have twice struck down its rule-makings, overturning a quickie union election gambit and a requirement that companies hang pro-union posters in the workplace.
More important is the case's implication for the Constitution's Appointments Clause and the balance between Presidential and Congressional powers. As D.C. Circuit Chief Judge David Sentelle noted in his opinion, "allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers."
Mr. Obama fancies himself a constitutional lawyer, yet as President he has exhibited an odd view of his powers. He's invited Congress to limit his authority on national security where it is constitutionally the strongest, yet he has sought to steal power from Congress via regulation when his legal right is dubious. The Justices have an opportunity to give Mr. Obama a refresher course.
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