King Barack The First Gets Slapped Down
There are only two conclusions you can draw from President Obama's recent effort to use the "recess appointment" process to pack the National Labor Relations Board with extremists who would never be confirmed by the Senate.
On the one hand, perhaps as a constitutional law professor Obama was a great community organizer. More likely though, Obama has simply confused being President with being King.
Regardless, last Friday the United States Court of Appeals reminded Obama that, despite what MSNBC and NPR may believe, this is not a monarchy.
There are some jobs a President can fill without asking permission from anyone. Other jobs require approval by the United States Senate. Appointments to the National Labor Relations Board fit into the latter category.
When the Senate is out of session, a President can use the recess to appoint people to fill jobs for the balance of the Senate's two year cycle. These so-called "recess appointments" obviously require the Senate to be in recess.
As mentioned earlier, about a year ago, Obama came up with a scheme to pack the NLRB with a bunch of pro- union activists who could never overcome a Senate filibuster to be appointed on their merits. The plan called for Obama to use the "recess appointment power" during a holiday break. Republicans thwarted this scheme by never officially gaveling the Senate out of session. As a result, there was no recess.
Undaunted, Obama went ahead and installed his folks on the NLRB - daring anybody to challenge him. Over the last year, these Obama appointees have issued a series of increasingly bizarre pro-labor decisions which have reversed decades of settled employment law.
The Court of Appeals has now found, obviously, that Obama violated the Constitution by installing his people without Senate approval when there was no recess. Interestingly, the Court went even further in limiting the definition of when the Senate is really in a recess.
This second question poses interesting Constitutional questions. I don't know what the Supreme Court will do if the issue gets to it.
The first question is easy though. Obama didn't have the authority to do what he did - and I suspect he knew it and didn't care. As a result, all the crazy decisions the NLRB has come up with since Obama rolled out his scheme would now appear to be null and void.
That's good news for people who care about the Constitution and the rule of law.
The whole thing reminds me of when Franklin Roosevelt got tired of the Supreme Court overturning various aspects of the New Deal as being unconstitutional. Roosevelt came up with a scheme to increase the size of the Supreme Court so he could pack it with his toadies.
The plan to subvert the Constitution didn't work for FDR then - and hasn't worked for Obama now.
Barack Obama may have been re-elected President - but he's not the King (at least not yet). It's unfortunate (and more than a bit troubling) that it took the Court of Appeals to remind him of this simple fact.