National Labor Relations Board

Supreme Court rejects Obama’s power grab: Justices unanimously invalidate NLRB recess appointments

The White House got a big reality check from the Supreme Court this morning. In a unanimous decision, the High Court invalidated recess appointments President Barack Obama made to the National Labor Relations Board in January 2012 because the Senate was technically in session.

The Constitution, in Article II, Section 2, allows a president to make appointments to fill vacancies when the Senate is not in session. These nominations are reviewed by the Senate when it reconvenes and must be approved by two-thirds of that chamber.

The issue at hand is that the Senate was in pro forma session — meaning that it had not formally adjourned — when President Obama made the appointments. The opinion in National Labor Relations Board v. Noel Canning, written by Justice Stephen Breyer, makes very clear that President Obama exceeded his constitutional authority by trying to sneak in bureaucrats who would rubber-stamp his and big labor’s agenda.

“In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for pur­poses of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Breyer wrote. “The Senate met that standard here.”

“The standard we apply,” he continued, “is consistent with the Constitu­tion’s broad delegation of authority to the Senate to determine how and when to conduct its business.”

Despite filibuster deal, questions remain on NLRB

The devil, as they say, is in the details. It’s easy to forget in the face of larger-than-life scandals (Benghazi, IRS targeting, improper and runaway spending in federal agencies) that the small, underreported, and incremental chipping away at free-market values is what may get us to what many fear the most: the irreversible intrusion of the federal government into the very machinery of our economy.

Media has begun buzzing — as much buzz as they can muster over what are mostly perceived as tiny earthquakes — about President Obama making two new nominations to the National Labor Relations Board (NLRB). As Josh Gerstein at Politico reports:

A developing deal to break an impasse over President Barack Obama’s nominations to the National Labor Relations Board may head off proposed changes to the Senate’s filibuster rules but it seems unlikely to scuttle a Supreme Court showdown over Obama’s authority to use his recess appoinment power to fill longstanding vacancies in the executive branch and the courts.

NLRB Illegally Wades into Labor Dispute; Private Sector Fights Back

Just a couple of short years after using litigation to intimidate Boeing into either allowing new South Carolina employees to organize, or to move those new jobs to a state with stronger labor protections, two regional directors of Obama’s National Labor Relations Board asserted themselves in a labor dispute in New York earlier this year between Cablevision and the Communications Workers of America union. The NLRB, however, doesn’t have the authority to wade into the dispute because a D.C. Circuit Court ruled in January that Obama’s recess appointments to the NLRB were illegal.

Cablevision, according to the Wall Street Journal, sought emergency injunctive relief from that same D.C. Circuit Court earlier this year to stop the NLRB from trying to adjudicate the dispute in the agency’s administrative court:

Cablevision is petitioning the D.C. Circuit to issue a writ of mandamus—a direct court order—prohibiting the NLRB from proceeding with unfair-labor-practice complaints against it and its parent company, CSC Holdings. Cablevision’s rationale is straightforward: The same D.C. Circuit ruled in January that President Obama’s non-recess recess appointments to the NLRB were illegal. Thus, the board has been operating without a quorum since January 2012….

Capitalism, Jobs and the Wizard of Menlo Park

One of the most disturbing trends I’ve witnessed over these last few years is a coordinated attack from the left on the institutions and principles that make America great. Maybe nowhere has this been more evident than in the vitriol spewed by our eternal Campaigner-in-Chief and his dutiful Minions of Social Justice, all bemoaning the evils of capitalism, and the inequity of wealth distribution (although oddly, their desire for more equal distribution does not extend to income taxes, where the top one percent earn 19% of the income and pay 40% of all income taxes, while the bottom fifty percent that pay exactly zero).

Obama has set so many straw men on fire that he’s now the leading cause of global warming. He accused doctors of slicing out tonsils and amputating limbs just to bill a few more dollars to insurance companies. He’s accused business owners of not caring about their employees and only about their company’s bottom line. He accused the Chamber of Commerce, without proof, of using foreign money to buy elections. His NLRB threatened Boeing for opening a new, billion dollar plant in right-to-work South Carolina, and his wife urged young students not to go into the corporate world, but rather “work for the community” like her community organizer husband, as if bringing valued goods and services and the accompanying jobs and wealth into the community was not a worthwhile endeavor.

When did we reach the point where we extol the timid and the parasitic? Where wealth creation was bad, and the American Dream had been supplanted by a desire for European-style social welfare? We don’t even have to look back in history to see what a nightmare this is; we just have to turn on the news. The Greeks are rioting in the streets at the thought of giving up an ounce of their lavish social welfare benefits, and the European Union is at the brink of collapse as it struggles under the weight of its debt driven by these welfare state policies.

UAW drops labor dispute in Tennessee

United Auto Workers has given up on its attempt to challenge an unsuccessful attempt to unionize a Chattanooga-based Volkswagen plant. Though leaders had filed a dispute with the National Labor Relations Board seeking a new vote, the labor union suddenly withdrew the challenge yesterday:

In an abrupt turnabout, the United Auto Workers on Monday officially dropped their attempt to get the federal government to order a new organizing election at a Volkswagen plant in Chattanooga, Tenn.

The union said that it was stymied by the refusal of state Republican officials to testify at a hearing before the National Labor Relations Board.

The union also conceded that even if it the NLRB had agreed to its complaint and ordered at new election at the VW facility, it ran a serious risk of getting a second rejection from the workers.

“The UAW is ready to put February’s tainted election in the rearview mirror and instead focus on advocating for new jobs and economic investment in Chattanooga,” said Bob King, the union’s president. A regional hearing on the case was set for Monday morning, but UAW instead officially notified the NLRB it was withdrawing its complaint.

Obama likely to lose recess appointments case

While it’s predict the outcome of a case on oral arguments, the Supreme Court seems poised to strike down President Barack Obama’s appointments to the National Labor Relations Board (NLRB), via The Hill:

Nearly every justice on the nation’s highest adjudicating body questioned the constitutionality of his 2012 National Labor Relations Board picks, which bypassed Senate confirmation.

Even Justice Elena Kagan, an Obama appointee and part of the court’s liberal wing, said, “The history is entirely on the Senate’s side, not your side.”

Chief Justice John Roberts also defended the Senate’s role in approving nominees as an important check on presidential power, contending, “They have an absolute right not to confirm nominees that the president submits.”
[…]
But most of the justices appeared receptive to arguments that the court should uphold a lower court’s ruling that the nominations were unconstitutional and should be invalidated.

Such a decision, the government’s attorney warned, could deprive Obama and future presidents of authority that was expressly granted by the nation’s framers and has been used since George Washington’s administration.

At issue is whether President Obama overstepped his authority in January 2012 when he made three recess appointments to the NLRB. The problem is that the Senate was in pro forma session — meaning that it had not formally adjourned and that the recess appointments are invalid.

Supreme Court to hear NLRB case, weigh limitations on executive power

The Supreme Court will hear oral arguments this morning in case over what some argue are unconstitutional recess appointments made by President Barack Obama and limitations on executive power.

The case, National Labor Relations Board v. Noel Canning, deals with recess appointments to fill three vacancies on the National Labor Relations Board (NLRB). President Obama and his administration insist that the January 2012 appointments are valid because the Senate was in recess.

That argument, however, is specious, at best. The Senate was in pro forma session — meaning that it had not formally adjourned — when President Obama made the appointments. In other words, recess appointments could not actually be made.

The Constitution — in Article II, Section 2 — provides the president with the power to submit nominations for “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” These nominations are reviewed by the Senate, though its “advice and consent” role, and must be approved by two-thirds of that chamber.

Article II, Section 3 states that when the Senate is not in session, a president can act “to fill up all Vacancies that may happen.” But the Senate would still need to approve the nomination during their next session, otherwise the appointee’s commission expires upon the next congressional adjournment.

President Obama’s top constitutional violations of 2013

No matter how you look at it, 2013 was a rough year for the Constitution. Though the limitations on the federal government have been increasingly ignored over the past several decades, it does seem like it went into overdrive since President Barack Obama took office, particularly in the last 12 months.

During an appearance this morning on Fox and Friends, Elizabeth Price Foley, a constitutional law professor at Florida International University, went through some of President Obama’s biggest constitutional violations of the last year.

“The five biggest constitutional violations by the President have been in Obamacare. Which, as you know, is the signature legislation of the President, and it’s basically, sort of, become a playground to tryout an imperial presidency,” said Foley, pointing specifically to the delay of the employer mandate and the “exemption” for members of Congress and their staffers.

Another court strikes down Obama’s NLRB appointments

NLRB

President Barack Obama’s controversial, pro-union recess appointments to the National Labor Relations Board (NRLB) have been struck down by a third appellate court.

The Fourth District Court of Appeals ruled on Wednesday that the appointments were unconstitutional because the Senate had not adjourned for recess when President Obama made the appointments in January 2012.

“In this case, the President’s three January 4, 2012 appointments to the Board were not made during an intersession recess because Congress began a new session on January 3, 2012. Consequently, ‘these appointments were invalid from their inception,’” wrote Judge Clyde Hamilton, citing the case pending before the Supreme Court. “Because the [NLRB] lacked a quorum of three members when it issued its 2012 unfair labor practices decisions in both the Enterprise and Huntington cases, its decisions must be vacated.”

The Constitution, in Article II, Section 2, provides the president with the power to submit nominations for various offices, including ambassadors, judges, and cabinet-level posts. In a crucial check on executive power, these nominations are reviewed by the Senate and must be approved by 2/3 of that chamber.

Article II, Section 3 notes that when the Senate is not in session, the president can use his power to “fill up all Vacancies that may happen.” But the Senate would still need to approve the nomination during their next session, otherwise the commission expires upon adjournment. And therein lies the problem with the moves made by President Obama — the Senate was in pro forma session, meaning that it had not adjourned.

Senators meet to save filibuster, no deal reached

While a deal wasn’t reached last night, members of the Senate emerged from a joint caucus with an optimistic tone that the filibuster could be saved from the “nuclear option,” which would fundamentally change the rules of the chamber.

Because Senate Republicans have objected to some of President Barack Obama’s appointments to cabinet-level posts, Senate Majority Leader Harry Reid (D-NV) threatened to do away with the filibuster, a procedural hurdle that has existed in the chamber for more than 170 years.

The Hill reported that there was a consensus among members that they should try to reach a deal. It appears, however, that Reid will wait determine the fate of the filibuster this morning as the Senate will begin votes on some of the blocked nominees.

The first vote will be on the appointment of Richard Cordray to Consumer Financial Protection Bureau (CFPB). This vote may determine the fate of the filibuster. Reid also wants Republicans to allow votes on three appointments to the National Labor Relations Board (NLRB).

The NLRB appointments are particularly concerning due to President Obama’s unconstitutional recess appointments. Two appellate courts — the D.C. Circuit and Third Circuit — have already voided the appointments and the actions taken by the NLRB over the last 18 months. The Supreme Court is slated to hear the case this fall.


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