President Obama’s “recess” appointments to the National Labor Relations Board were ruled unconstitutional yesterday by a three-judge panel from the federal Court of Appeals for the DC Circuit.
The case is a major blow to Obama’s labor-friendly NLRB, and it reins in an executive power that Obama was using to pervert the intent of the Founders.
Under the Constitution, the president can bypass the Senate’s advise-and-consent role only when it is in recess. But a day after the session began last year, Obama nonetheless named three members to the NLRB without hearings — claiming the body was technically in recess because senators weren’t physically in the chamber.
That was illegal: Just because the president says it’s Monday doesn’t make it so. Similarly, he cannot decide by fiat when the Senate is out of session — that violates the government’s vital separation of powers.
“Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” the DC Circuit wrote.
So the recess appointees are out — which means the NLRB has only one legal member today (and it needs a quorum of at least three to decide cases). It also means every NLRB ruling issued over the last year — when it lacked a legal quorum — is invalid.
The decision may affect New York, too. The NLRB is expected to rule on the legality of the city school-bus strike next week, but its decisions appear to lack teeth now.
Next stop: the Supreme Court, which will decide the fate of the recess appointments. Seems our law-professor president is getting a lesson about the Constitution.