This past December, there was a major kerfuffle at the National Labor Relations Board (NLRB) as it was trying to pass a new rule regarding union elections before the term of pro-union Democrat Craig Becker, a (legal) recess appointment by President Obama, expired at the end of that month. The lone Republican on the Board, Brian Hayes, threatened to resign if the Board attempted to pass the rule, which allowed unions to speed up the elections of union representation and keep businesses from being able to mount a reasonable challenge to keep unions out. Hayes voted on various procedural issues regarding the rule (he voted against every one); but, on December 16, the Board issued a 2-0 vote approving the new rule without consulting Hayes. Per the NLRB, the rule was valid because the Board had the minimum three members required to make a quorum to pass anything. But because Hayes had no involvement in the final passage of the rule, D.C. Circuit District Judge James Boasberg, an Obama appointee, rightly concluded no quorum existed in the adoption of the final rule.
This is a big deal, as you’ll see.
Judge Boasberg cited the recent New Process Steel v. NLRB decision, a 5-4 ruling where former Justice Stevens (surprisingly) wrote the majority opinion (joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito) and Justice Kennedy wrote the dissent (joined by Justices Ginsburg, Breyer, and Sotomayor). In the New Process Steel ruling, the majority stated that the NLRB must actually have three members to constitute a three-person quorum (there were only two at the time).
In yesterday’s U.S. Chamber of Commerce v. NLRB ruling, Judge Boasberg noted that there were three members on the NLRB at the time of the adoption of the final rule regarding union elections. But as I mentioned above, Republican Brian Hayes was not involved in that adoption, not even to vote present or offer a dissent, and therefore there was no three-person quorum during the adoption process. Judge Boasberg did not rule on the merits of the new NLRB rule; he didn’t have to since it wasn’t, in his opinion, a validly passed rule to begin with.
As to why this is a big deal, the Obama regime is very much for unions, despite the fact that approximately 7% of private sector employees are represented by unions (even though the percentage of union representation of public sector employees is much higher, around 35%, it is still not a majority); even during the heydays of unions 50 years or so ago, a majority of workers were never represented by unions. Yet the Regime is hell bent on bringing back those glory days. But with the expiration of Becker’s term at the end of last year, the NLRB would be back at two members and there wouldn’t be the minimum number of people on the Board to do anything. Since Senate Republicans would be certain to block any Obama NLRB appointees, the NLRB would have nothing to do until Obama could appoint members during a recess of Congress.
Using the precedent set by Congressional Democrats a few years ago, which included Obama at the time, to use pro forma sessions to keep Congress in session to keep President Bush from using his recess appointment powers, Republicans did the same thing this year to make sure Obama couldn’t put people on the NLRB (or to any other agency or the courts). So in January of this year, Obama decided to ignore the Constitution and the law and illegally appointed two members to the NLRB so that it would appear that there were four people on the Board. Even more egregious, Obama’s NLRB appointees were so recent they hadn’t even been rejected or blocked by Senate Republicans, let alone vetted in the Democrat-controlled committee where this would be done. Suits have already been filed challenging these appointments and any actions they have taken or will take.
The Obama regime has made it a point to claim the President has the power to do pretty much whatever he wants, regardless of whether or not the Constitution and the law allows for these things. Just as with the unanimous rulings by the Supreme Court in the Hosanna-Tabor and Sackett cases, yesterday’s decision shows this isn’t true. But, it hasn’t stopped Obama or his Regime from lawlessly making these attempts. This country can ill afford another four years of these continued attempts by Obama to flout the law.
Cross-posted at Scipio the Metalcon.