President Obama has a history of playing fast and loose with the Constitution. His health care bill skirted the line of legality by coercing states to expand Medicaid (struck down) and mandating individuals to buy insurance (somehow upheld). His auto bailout illegally used TARP funds and subverted creditor rights to favor his union friends. And he used an unconstitutional interpretation of his power of Executive Privilege to hide the wrongdoing of Eric Holder in the Fast & Furious debacle.
And now a federal court of appeals has ruled that Obama violated the Constitution in making appointments when the Senate was on break last year. Lloyd Green of Fox News reports:
Friday, the United States Court of Appeals brought the president back to Earth and reminded him that that the Constitution’s Appointments Clause and the U.S. Senate are very much part of reality by voiding three of Obama’s recess appointments to the National Labor Relations Board.
The D.C. Circuit ruled that the president could not end-run the confirmation process merely because at the beginning of 2012 the U.S. Senate was meeting every three business days in, what lawyers call, pro forma session. Oh, and during that pro forma session the Senate was also busy passing the payroll tax extension. Some pro forma session.
The Constitution is fairly clear on the issue. Article II, Section 2, Clause 2 of the United States Constitution, better known as the Appointments Clause states that “[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for . . .”
That’s how it’s supposed to work. In the name of separation of power – one of the most important constitutional innovations – the president needs to have his nominees vetted and approved by the Senate. This can often be a very annoying process for the president, who often has to watch as his chosen appointees get held up in the partisan horse-trading and negotiating that goes on over countless bills.
Indeed, that happened in this case. Senate Republicans blocked President Obama’s choices for the National Labor Relations Board in order to prevent it from having a three-member quorum. That may sound like a cheap political trick—an example of the sclerotic nature of Washington—but really it’s the best defense Republicans could muster after being steamrolled on a bunch of labor issues. Here’s some much-needed context to Republicans’ actions courtesy of National Review’s Robert VerBruggen:
The National Labor Relations Board has become a partisan issue of late. After trying — and failing — to destroy secret-ballot union elections via “card check” legislation, President Obama turned away from the democratic process, and toward the NLRB, as a venue for advancing Big Labor’s interests.
To date, Obama has placed three people on the NLRB. During a congressional recess, he installed Craig Becker, who’d served as a top lawyer for two of the nation’s largest unions (the Service Employees International Union and the AFL-CIO), as a member of the board. He selected Mark G. Pearce — who had worked in “union side labor and employment law,” as his official NLRB bio puts it — as another. And Obama chose Lafe Solomon, a career NLRB lawyer, as the board’s general counsel.
Solomon promptly filed a complaint against Boeing, claiming the company had illegally discriminated against a unionized, strike-happy plant in Washington State when it chose to expand production in South Carolina, a right-to-work state, instead.
In light of these unprecedented actions, in which pro-union, unelected bureaucrats, were threatening free enterprise, the Senate wielded its power to advise and consent. A power which President Obama promptly ignored, instead opting to “recess” appoint more of his lackeys despite the fact that the Senate was holding pro forma sessions. Unfortunately, being annoyed with Republicans isn’t a workaround to the Constitution. Although he’s doing his best to try Obama can’t simply choose to follow the Constitution when it suits him and his agenda. It is the ground rules which everyone, regardless of party, must live by.
The sooner Obama figures that out (he was a Constitutional Law professor after all) the better for everyone.