Since the beginning of his first term, Barack Obama has filled the National Labor Relations Board with union attorneys with a radical agenda to reshape American labor law. Now, as the result of a second appeals court ruling, it all may come unraveled.
On Thursday, nearly mirroring a ruling made in January by the US Court of Appeals for the DC Circuit, the U.S. Court of Appeals for the Third Circuit ruled 2-1 that the President cannot unilaterally declare the Senate in recess in order to appoint his chosen appointees.
Unlike Noel Canning, the January ruling from the DC Circuit Court of Appeals that found Barack Obama's unilateral declaration that the Senate was in recess in January 2012 so he could make 'recess' appointments to the NLRB was unconstitutional, last week's decision made more clear that Obama's NLRB 'recess' appointments all the way back to 2010 were also made unconstitutionally.
What makes this case of great import is hat is directly affects the decisions and rulings that the union-friendly labor board has made since 2010 when Obama 'recess' appointed one of his most controversial 'recess' appointments, that of SEIU and AFL-CIO attorney Craig Becker.
"The Third Circuit has issued an extremely well reasoned opinion finding that Mr. Becker was not properly appointed," stated Michael J. Lotito of the law firm Littler Mendelson. "By implication, the current members are also serving unconstitutional terms."
In the Court of Appeals' decision, the Court relied on the Constitution's framers when it stated:
The "main purpose" of the Recess Appointments Clause, therefore, is not--as the Eleventh Circuit held and the Board argues--only "to enable the President to fill vacancies to assure the proper functioning of our government." .... This formulation leaves out a crucial aspect of the Clause's purpose: to preserve the Senate's advice-and-consent power by limiting the president's unilateral appointment power. [Emphasis added.]
Further, the Court stated [p. 60-62]:
As a consequence of these concerns, the framers sought to "ensure that those who wielded [appointments powers] were accountable to political force and the will of the people" by limiting the power of any one person or body. They did so by dividing that power between the executive and legislative branches....To ignore this division of power is to neglect a central principle that underlies the two Appointments Clauses....Nothing in the text of the Clause or the historical record suggests that it is intended to be a type of pressure valve for when the president cannot obtain the Senate‘s consent, whether that be because it has become dysfunctional or because it rejects a president‘s nominations. [Emphasis added.]
Ironically, however, it was only a few years ago that the AFL-CIO wanted to see the NLRB shut down.
Though unions and their Democrat cronies--in the midst of radically rewriting the rules for unions and employers--may not like the timing of having a shut down NLRB, it is, ultimately, their own doing.
In their haste, union bosses, Democrats and the President forgot to consider that, for the moment, the U.S. still has a constitution that should be followed and that constitution has a system of checks and balances.
"Truth isn't mean. Its truth."
Andrew Breitbart (1969-2012)