BOOM! D.C. Court of Appeals puts Obama in his place on recess appointments

It’s taken a little over a year, but Obama’s National Labor Relations Board (NLRB) recess appointments have finally been ruled on by the DC circuit court of appeals. The decision? Obama abused his power violating Article 2, Section 2, Clause 3 of the constitution.

Obama ripping constitutionFor those who don’t remember, in January 2012 NLRB member Craig Becker’s term was ending, leaving too many members missing to form a quorum. Without a quorum the NLRB could not rule on issues brought to them. Obama, a friend of big labor, and knowing it would be difficult to get his appointees approved legally through the Senate, waited until they went on Christmas recess to make his move. On Jan. 4, 2012, Obama appointed three members to the board through recess appointments.

There was one problem with Obama’s recess appointments — the Senate was not in recess. In order for the Senate to go on recess for periods longer than three days, the House of Representatives has to approve it. This never happened. Why? The Senate remained in session by holding Pro Forma sessions. In these sessions a member of the Senate stays back in Washington, D.C., bangs the gavel to open a session and then closes it moments later. This is done precisely to prevent recess appointments from happening. Republicans aren’t alone in doing this. Senate Majority Leader Harry Reid used the same tactic to prevent President Bush from making recess appointments during his second term.

The American people win on two fronts with the decision. First and foremost, this court is giving Obama a necessary reminder that there is this thing called the constitution and it is not a buffet where he can pick and choose what he wants to follow. Additionally, business owners may be able to breathe a little easier now. This year the NLRB has been hard at work hindering businesses across the nation through their rulings. This includes everything from telling employers they cannot restrict off-duty employees’ access to their business, to refusing to allow an employer to fire workers using social media to undermine their authority.

This begs the question, if the NLRB appointments were unconstitutional, what does this do to their rulings during this period? At this point in time, that remains unknown. Nevertheless, the Obama administration is not going to go down without a fight and will likely take this to the Supreme Court.

Fortunately, those in favor of the ruling don’t have any plans to back down either. In the words of Mark Mix, President of the National Right to Work Foundation, “The Constitutional chaos created by Barack Obama’s so-called recess appointments to the Labor Board continues to reverberate across the country.” Adding, “Foundation staff attorneys are prepared to challenge Obama’s unconstitutional actions before the U.S. Supreme Court if necessary.”

Jason Blair is a contributor to The Brenner Brief. Twitter @jasonblair79

Jason Blair is a contributor to The Brenner Brief. Twitter @jasonblair79

Adding to the support are 42 Senate Republicans who signed a petition on this specific case questioning the constitutionality of the appointments as well. The Republicans who refused to sign were Scott P. Brown, Dean Heller, Mark S. Kirk, Lisa Murkowski, and Olympia J. Snowe.

This fight is larger than the National Labor Relations Board, unions, or workers across America. It is a fight for the respect, loyalty and obligation our leadership must have to the separation of powers and the checks and balances that were deliberately put into the U.S. Constitution.

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  1. Despite the ruling the appointees simply said: “we respectfully disagree” and “we still have important work to do” so they are just going to keep trucking. This administration makes Richard Nixon look responsive.

  2. Nice! I love how Jay Carney described the court’s ruling as “novel an unpreciedented.” They’ve only had to make these rulings because Obama’s disregard for the constitution is novel and unprecedented.

  3. Please cancel these newsletters


  1. […] for instance the recent ruling the D.C. Court of Appeals made on Obama’s illegal National Labor Relations Board (NLRB) appointments. In this case, Obama has run roughshod over two […]

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