President Obama’s spokesman denounced the invalidation of the so-called ‘recess’ appointments as a “novel and unprecedented ruling,” adding that the decision has “no impact on the ongoing operations of the National Labor Relations Board (NLRB).
“The decision is novel and unprecedented,” White House Press Secretary Jay Carney said during the press briefing. “It contradicts 150 years of practice by Democratic and Republican administrations. so, we respectfully but strongly disagree with the ruling.” Carney said that over 280 intrasession recess appointments have been made since 1867.
And, thanks to the Obama administration, that particular little political pressure valve may be clamped shut forever! All because Barack Obama and his team of N-dimensional geniuses apparently don’t know how to deal with people who will tell them “No.”
Moving on: a copy of the decision is here. It’s interesting reading, partially because (possibly ironically) the court determined that the initial controversy that sparked this case (whether or not an owner made a verbal agreement in a collective bargaining session) was in fact rightly adjudicated by the National Labor Review Board (they decided that he had). This is important because if it hadn’t been, then the court simply would have had to say We’re not going to get into the constitutionality of the situation; the decision was wrong on its merits and thus avoided the whole issue. This happens quite often. In fact, the courts actively try to avoid ruling on the constitutionality of things when they can rule on the merits, and we probably should all be happy about that. Also note that DC v. Heller was brought up in this case, to the distinct disadvantage of the government; all hail the contemplation of original intent!
Lastly: the court decided two things. First, it indicated that the NLRB did not have a quorum in this specific case because the ‘recess’ appointments that had been made did not pass constitutional muster. That was unanimous. Second, the court ruled that, to quote a colleague, “the President can only make recess appointments during the intersession recess (as opposed to the many, many intrasession recesses that typically took place). In other words, the D.C. Circuit just relieved Congress of the burden of doing the kabuki dance of keeping themsevles in pro forma session to avoid intrasession recess appointments.” That decision was not unanimous; Justice Griffith (one of the three on the panel) indicated that he felt it was not necessary to go that far – because, again, the decision could already be determined to be unconstitutional. I suspect that when the Supreme Court takes this up, the Justices will probably agree with Griffith.
Moe Lane (crosspost)
PS: One final point: while Carney and the NLRB are correct that this decision resolved a specific case, having the courts rule that the recess appointments were unconstitutional essentially green-lights the issuing of lawsuits by every group or person on the wrong side of a NLRB decision since Obama packed the board with his ‘recess’ appointees. It also more or less guarantees a Supreme Court decision where the question will be whether to forbid recess appointments in their current form for the rest of the existence of the Republic.
Of course, as always: I am not a lawyer. And I am sometimes amusingly wrong, for given values of ‘amusingly.’