President Obama’s three appointments to the National Labor Relations Board last year were ruled unconstitutional by an appeals court, but the appointees are still in place as the dispute moves to the U.S. Supreme Court.
“Obama’s recess appointments are unprecedented power grabs, which if left to stand will turn the constitutional separation of powers on its head,” said Tom Fitton, president of Judicial Watch, which has filed a friend-of-the-court brief in the case.
“Unfortunately, these recess appointments are one of many examples of this president acting outside of his constitutional authority. We hope the Supreme Court reminds President Obama that he is not above the law,” said Fitton, whose organization describes itself as a watchdog on the federal government.
The U.S. Court of Appeals for the District of Columbia ruled that the January 2012 appointments were unconstitutional, because the U.S. Senate was not in recess at the time.
Judicial Watch joined with the Allied Educational Foundation in the brief, which charges the president’s “alleged recess appointments to the NLRB are unconstitutional for the primary reason that the Senate was in session at the time of the purported appointments.”
“The president’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business,” the Judicial Watch/AEF brief argues.
“The Senate alone can determine when it will hold session in conformity with its obligations and delegated powers by the Constitution.”
WND reported earlier on the case when the appeals court ruled the appointments violated the law.
At the time, Rep. Darrell Issa, R-Calif., said the correct next step in the dispute would be for the appointees to step down.
Issa, the chairman of the Oversight and Government Reform Committee, chided that 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.
He said the ruling made the decisions from the board itself suspect.
“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 appointments and the repercussions that his decision to bypass the Senate confirmation process for NLRB appointees would have on the troubled agency.
The chairman said it’s largely uncharted territory.
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, met 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 appellate 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.
The Supreme Court previously has 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.
Judicial Watch said there should be no confusion regarding the intent of the Founders.
Furthermore, the brief argues, the Senate sets its own rules.
Obama’s flouting of the constitutional requirements has been cited as one of many reasons to impeach him.