Policy: Labor

Day 6: Obama claimed unlimited recess appointment power in NLRB crisis

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Conn Carroll,Labor unions,Barack Obama,Labor,NLRB,Executive Power Series,Presidential Nominees

National Labor Relations Board officials filed a complaint April 20, 2011, against the Boeing Co., seeking to force the aerospace giant to build new 787 Dreamliners in the forced-unionism state of Washington rather than in its new assembly plant in the right-to-work state of South Carolina.

Boeing had sought to build all the Dreamliners near its existing plant in Puget Sound, but the International Association of Machinists refused to agree to a no-strike clause in a new labor contract.

IAM has struck four times since 1989, costing Boeing at least $1.8 billion in revenue.

After a fierce political fight, the NLRB finally dropped its suit on Dec. 9, 2011, but only after Boeing agreed to sign a generous new four-year contract with the IAM, without that sought-after no-strike clause.

President Obama’s appointees on the NLRB had essentially used the power of the federal government to shake down a private company, while also sending a strong signal to all private companies to think twice before creating new jobs in right-to-work states.

Republicans in Congress were livid over Obama’s raw abuse of executive power and vowed to shut down the NLRB.

About this series

On Nov. 16, 2010, just days after voters gave Republicans control of the House of Representatives, the progressive think tank Center for American Progress published a report titled "The Power of the President."

Obama-Biden Transition Project Chairman John Podesta introduced the report, writing that "in the aftermath of this month's midterm congressional elections, pundits and politicians across the ideological spectrum are focusing on how difficult it will be for President Barack Obama to advance his policy priorities through Congress."

"Some debate whether the administration should tack to the center and compromise with the new House leadership," Podesta continued.

"As a former White House chief of staff, I believe those to be the wrong preoccupations. President Obama's ability to govern the country as chief executive presents an opportunity to demonstrate strength, resolve, and a capacity to get things done," Podesta said.

Not only did Obama almost immediately embrace the report's call for maximizing executive power to achieve progressive ends without Congress, it even branded the effort "We Can't Wait," thus advertising the fact that Obama had abandoned all pretense of following the U.S. Constitution's carefully drawn separation-of-powers doctrine.

In this Washington Examiner series, Senior Writer Conn Carroll documents the many times Obama has flagrantly abused executive authority to advance his liberal agenda without congressional approval.

The top 10 instances will be examined over the next two weeks, and more will come later.

Stories in this series

1. Immigration amnesty by executive memo

2. The employer mandate delay

3. War in Libya

4. The illegal Solyndra contract modification

5. Rewriting federal education law by waiver

6. Unconstitutional NLRB appointees

7. The Yucca Mountain delay

8. Gutting welfare reform

9. The Gulf of Mexico drilling moratorium

10. Regulating the Internet

So when NLRB board member Craig Becker stepped down on Jan. 3, 2012, the Senate refused to approve of any of Obama's new appointments to the board.

As a result, the board could not produce a required quorum, as stated by the National Labor Relations Act, and was thus unable to function.

Obama solved this problem by bypassing the Senate and recess-appointing three new members to the board on Jan. 4. The NLRB then went on with its business as usual.

Unfortunately for Obama, the Senate, according to its own rules, was not in recess, so none of his recess appointments, nor any of the rulings and regulations issued by the recess-appointee NLRB majority, were constitutional.

Multiple firms then sued the NLRB, challenging the legality of Obama’s appointments. And every single federal circuit court that has ruled on the issue has decided against Obama.

The Supreme Court will hear oral arguments on the earliest of these cases, Noel Canning vs NLRB, sometime this fall.

Article II, Section 2 of the U.S. Constitution reads, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

Obama argued that since the Senate was only holding “pro forma” sessions every three days, the body was functionally in recess, despite its insistence otherwise, thus giving him the power to makes recess appointments.

But if that were true, then payroll tax extension that passed on Dec. 23, 2011, during one of these Senate pro forma sessions, would also be invalid.

A Senate in recess cannot pass laws. Either the Senate was in session, and the payroll tax is valid, or the Senate was not in session, and Obama’s NLRB recess appointments are invalid. Obama cannot have it both ways.

In front of the U.S. Court of Appeals for the District of Columbia, Obama’s Office of Legal Counsel even went so far as to argue that it was completely up to the president’s discretion to decide when the Senate was, and was not, in recess.

Every court that has examined this argument has rejected it. There is no logical end to Obama’s proposed new definition of recess.

If the president can decide when the Senate is, or is not, in session, then he could declare the Senate in recess at the end of every business day. Or even when they broke for lunch, for that matter.

There would never be any need for any Senate consultation of any federal nominee ever again. Any president could install his entire government the day after he was inaugurated, all by “recess” appointment.

That is clearly not what the authors of the Constitution intended when they added the recess clause.

If it was, then why include the Senate "advice and consent" clause at all in the first place?

Conn Carroll is a senior writer for the Washington Examiner.
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