President Obama showed some real chutzpah last year when he put three people on the five-member National Labor Relations Board without consulting the U.S. Senate as the Constitution requires. His decision, since invalidated by the D.C. Circuit Court of Appeals, has caused some major trouble for the NLRB. The panel, which settles disputes among workers, unions and management, has now asked the Supreme Court to rule on the president's actions. The justices should teach the White House a lesson and toss out all of the appointments.
Article 2, Section 2 of the Constitution states: "The President shall have the 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." The purpose of this section is to allow the government to function should an emergency arise when the Senate is not available to perform its "advise and consent" duty on a nominee. But as the D.C. Circuit ruled, it wasn't a license for the president to ignore Congress.
When President George W. Bush tried to circumvent Democratic opposition to some of his nominees by making recess appointments, Democrats struck back by keeping the Senate open in pro forma sessions -- gavel in, gavel out -- even when most of them had gone home. Bush conceded that the Senate was still technically operating and stopped making the appointments. In short, the system worked.
But Obama broke the system on Jan. 5, 2012. The appointments of Sharon Block and Richard Griffin had been announced publicly only three weeks earlier, just before Christmas. The other, Terence Flynn, was announced the same day he was recess-appointed. There had been no time for majority Senate Democrats even to hold hearings, let alone for Senate Republicans to obstruct these nominations. Obama had no excuse for his actions whatsoever.
It came back to haunt him two months ago, when the D.C. Circuit ruled in Noel Canning v. NLRB that Block's and Griffin's appointments were unconstitutional. (Flynn had already resigned from the NLRB after an unrelated controversy.) The D.C. Circuit opinion imposed very tight constraints on the recess appointment power that would have also invalidated previous presidents' recess appointments. The Supreme Court could well embrace its logic, but it will not have to go nearly so far in order to invalidate Obama's appointments, which were not even made during a recess.
The D.C. Circuit's decision presents a serious and immediate problem for the NLRB because it must have at least three members for a valid quorum. Without Block and Griffin, the only legally appointed member is Chairman Mark Pearce, and so everything the NLRB has done since January 2012 is now invalid. The NLRB and White House initially tried to behave as though the court's ruling didn't matter, but a wave of lawsuits from businesses against the panel's decisions has forced the NLRB to ask the Supreme Court to resolve its status.
This offers a prime opportunity for the justices to stop executive branch overreach and remind Obama about the Constitution's balance of powers.