U.S. Rep. Darrell Issa, R-Calif., says the correct next step in a dispute over Barack Obama’s “recess” appointments of three members of the National Labor Relations Board would be for the appointees to step down.
The comment came today after the District of Columbia Circuit Court of Appeals ruled that Obama failed to follow the Constitution, determining that the Senate was not in recess when the appointments were made.
Issa, the chairman of the Oversight and Government Reform Committee, said the president, “who taught constitutional law, should’ve known better.”
“As the Oversight Committee examined in a hearing a year ago, President Obama’s appointments looked like an obvious election-year pander to big labor bosses,” Issa said. “Today, we know that it is American workers who are going to pay the price for the administration’s arrogant miscalculation.”
Issa said the ruling “will certainly cause other opinions unconstitutionally issued by the board to be invalidated.”
“To avoid further damage to the economy, the NLRB must take the responsible course and cease issuing any further opinions until a constitutionally sound quorum can be established,” he said. “The unconstitutionally appointed members of the NLRB should do the right thing and step down.”
Issa said his committee has examined the unconstitutionality of the president’s recess appointments and the repercussions that his decision to bypass the Senate confirmation process for NLRB appointees would have on the troubled agency.
In a statement at the time the review was conducted, Issa said that if the Senate can pass a bill and send it to the president for his signature, it is clearly not in recess.
“But a ‘recess’ is exactly what President Obama has argued in justifying four recent appointments,” Issa said.
The members named to the NLRB were Richard Griffin Jr., Sharon Block and Terence F. Flynn.
The issue was that the Senate, although not meeting every day, did meet regularly and did not announce a formal adjournment. Nevertheless, Obama declared the Senate in recess and made the appointments.
“This is not a recipe for good government and effective rulemaking – it’s a recipe for constitutional crisis,” Issa said.
In the unanimous court opinion, the judges said the Obama administration’s arguments were not persuasive.
“To adopt the … proffered intrasession interpretation of ‘the recess’ would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause,” the court said.
As the Supreme Court observed, the court said, the “manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.'”
Because of the potential for abuse, the “advice and consent” part of the Constitution requires Congress to approve presidential appointments, they explain.
Allowing the president to determine when the Senate is in recess would give the executive office too much power, they state.
“An interpretation of ‘the recess’ that permits the president to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the president free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.
“The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments. Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”
The court continued: “In short, the hold that ‘the recess’ is limited to intersession recesses. … The president made his three appointments … on Jan. 4, 2012, after Congress began a new session on January 3 and while that new session continued.
“The appointments were invalid from their inception.”
David French of the American Center for Law and Justice, which represented House Speaker John Boehner in the arguments, said, “Today is a good day for constitutional governance.”
“The opinion from the D.C. Circuit is a must-read,” he said.
French said it’s important that the court “has rejected the Obama administration’s direct challenge to our core constitutional system of checks and balances.”
The underlying dispute was about enforcement of a contract involving soft drink bottling company workers at Noel Canning, who ultimately loss out in the appeals court arguments.
Joe Hansen of the United Food and Commercial Workers International Union appeared to not accept the explanation of the judges that there was no recess.
“This decision is misguided. When President Obama made appointments to the NLRB during a congressional recess he was merely exercising his constitutional authority,” he said in a statement.
The New York Times called the rule “a blow to the administration and a victory for Mr. Obama’s Republican critics.”
John Elwood, who handled recess appointment issues during the Bush administration, told the Times the decision, if it stands, will “fundamentally alter the balance between the Senate and the president by limiting the president’s ability to keep offices filled.”
The White House said it disagreed with the court.