Way back in 1937, Democrat hero and Republican villain, Franklin Delano Roosevelt, proposed the Judicial Procedures Reform Bill. Essentially, Roosevelt was having trouble getting the Supreme Court to rule his New Deal as constitutional so, being the “reformer” he was, he decided to pack the court by expanding it to as many as 15 justices. Of course as president, Roosevelt would then have the duty to appoint 6 new justices to fill the roles and totally coincidentally, they’d all be friendly to his ideas.
After revealing the plan in February during one of his “Fireside chats,” Roosevelt was saved from having to make the court “more efficient” when a little over a month later, Justice Owen Roberts moved to the left in what has been called “the switch in time to save the nine.”
Fast forward to January of 2012.
President Obama, not having to contest with lifetime appointments on the National Labor Relations Board, the powerful government agency charged with overseeing fair union elections and making decisions about labor disputes, packed the agency with more success than FDR by simply openly defying the constitution.
He did this by abusing his power to issue recess appointments. Recess appointments are of course designed to allow the President to appoint a necessary position that normally requires Congressional oversight. Its purpose is to allow those necessary appointments to happen in the off chance that Congress is in recess.
It’s hard to imagine however that it was designed to allow a president to wait until a 3 week recess after New Years, and then recess appoint a majority to assist in pushing through various positions the administration holds.
The move was ruled unconstitutional by a three-judge panel of the U.S. Court of Appeals for the DC Circuit (none of whom were recess appointed) and is now set to appear before the Supreme Court.
Websites have even started popping up such as NLRBTruth.com whose tagline is “The NLRB cannot be for jobs and against employers.” Lawsuits from Boeing and Cablevision have been in the news (as well as reported here) and yet, President Obama stands by his decision to pack the agency in defiance of the Constitution.
So where FDR failed to usurp the constitution to push his agenda, President Obama is succeeding. At least for now.