The Obama Watch

Bend It Like Becker

How a recess appointment could impose card check -- and even greater unemployment.

By 4.1.10

Does Barack Obama want to wreck the American economy? That's one obvious and troubling question raised by his recess appointment of Craig Becker to the National Labor Relations Board.

People who know anything about labor law are extremely worried about this decision. Appointing Becker to the NLRB is a bit like assigning the fox to guard the hen house -- if chicken were an endangered species.

The president's political calculus was simple enough. The union bosses wanted Becker, and Obama wants the unions' support in the midterm elections. Becker is a lawyer who has represented both the AFL-CIO and the SEIU (and, by extension, ACORN). He is at the leading edge of radical labor opinion.

To wit, Becker helped to pioneer the idea of card check that unions so desperately want to pass. This change in labor law would effectively substitute the public clipboard for the private ballot box, which Becker has disparaged as being "profoundly undemocratic."

Card check is deeply unpopular and is not likely to be passed by Congress, but Becker may have a way around that. He has hinted that the NLRB may be able to impose changes on the way unionization elections are conducted without Congress legislating any changes in labor law. He has also advocated that companies not be allowed to participate in NLRB hearings or contest election results, and that they not be allowed to have observers at the polls to challenge ballot fraud.

Becker wants this pro-union tilt to labor law because he believes that all Americans should be represented by unions, whether they like it or not. He has written,  "Just as U.S. citizens cannot opt against having a congressman, workers should not be able to choose against having a union as their monopoly-bargaining agent."

Congress saw that Becker on the NLRB would be a one-man card check bill. That's certainly the interpretation of labor law that he will be pushing for and that, with a new Democratic majority on the NLRB, he might just get.

That's why the Senate didn't even come close to ending the GOP filibuster of his nomination. The vote was held on February 9. Becker got only 52 of the needed 60 votes and we don't even know if, in a non-cloture vote, he would have got a majority. It's possible that some senators voted for him because they thought it would be a painless sop to unions.

Untroubled by the will of the Senate, Obama used his power of recess appointment to install Becker on the NLRB. Becker's term will run until the end of 2011 and Congress is unlikely to give him an extension. But by that time the damage may already have been done.

In a good economy, the Becker appointment would be troublesome for constitutional reasons. Presidents should not use be using the power of recess appointment to get around the duty to secure the Senate's "advice and consent" for key appointees.

In the bad economy that we currently have -- the one that saw yet more job losses for the month of March and that threatens to double dip back into recession -- a strong pro-labor tilt could be devastating to job creation.

For technical reasons, the Supreme Court is set to rule soon on whether the NLRB decisions of the last year-plus are valid. One labor watcher told me he hopes the justices throw the whole mess of them out. That way, he said, Becker and company would have their hands full for some time rehearing and reruling on the old cases. In his view, idle bureaucratic hands are a danger to our liberties.

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About the Author

Jeremy Lott is managing editor of The American Spectator, a contributor to EconStats, and the author of several books and a haiku.