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Obama rebuffed on NLRB picks Following the federal appeals court smackdown of President Obama on his recess appointments of three National Labor Relation Board members, one might be tempted to say it's a rejection of Obama's socialist tendencies.
Editorial
But the truth is, such appointments, where a president unilaterally appoints people to important jobs while the Senate is not in session, are provided for in the U.S. Constitution.
At one time, recess appointments were rare. But since the late 1970s, they have been more common as a way to bypass the sometimes contentious Senate confirmation process.
Republicans are outraged that Obama would do an end-run around on the NLRB appointments. But in 2005, Democrats were similarly infuriated with President George W. Bush, who took advantage of a congressional recess to appoint staunch conservative John Bolton as ambassador to the United Nations.
In all, Bush made 171 recess appointments; President Bill Clinton, 139. This compares to President Andrew Johnson, who made just 14.
The U.S. Appeals Court for the District of Columbia ruled that Obama acted unconstitutionally in appointing three people to the NLRB in the manner that he did.
Obama claimed he acted to ensure the NLRB has a quota necessary to conduct agency business. Republicans, meanwhile, say Obama was trying to pack the board with union-friendly appointees.
The appeals court disputed Obama's contention that the Senate was in recess at the time he filled the NLRB vacancies on Jan. 4, 2012. Turns out, the Senate was holding pro forma sessions during which no business was transacted.
In its ruling, the three-judge panel focused on the word "the" in the constitutional clause that says presidents can fill vacancies that may happen during "the" recess of the Senate.
In the court's view, the president cannot decide on his own when the Senate is in recess and that "the" recess only happens between congressional sessions, not whenever lawmakers break for holidays or whenever.
The D.C. appeals court doesn't have the final say -- at least two other cases having to do with the NLRB are scheduled to be heard by appellate courts next month. Ultimately, the Supreme Court likely will be asked to weigh in.
But the latest ruling is a blow for Obama and a win for the GOP and business groups that have been critical of the NLRB.
If the decision stands, it could invalidate hundreds of decisions, including some that make it easier for unions to organize.
If not, recess appointments likely will continue to be a substitute -- a poor one, at that -- for bipartisanship that has eluded Washington going back to at least the 1970s.
In the court's view, the president cannot decide on his own when the Senate is in recess.
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