Hidden underneath the thick wool of scandal blanketing the Obama Administration, the 3rd Circuit Court of Appeals ruled the president’s recess appointment to the National Labor Relations Board unconstitutional last Thursday.
To see the president’s agenda receive body blow after body blow from each branch of government renews my love for checks and balances. Praise to you, James Madison!
In the case of NLRB v. New Vista Nursing, the court ruled that a August 26 decision made by the Board was invalid as one of the members was unconstitutionally appointed by President Obama. The resident recess-appointed Craig Becker in March 2010, during a 17-day adjournment by the Senate. The Court ruled that this appointment was unconstitutional as the Senate was not in session during this “intrasession break.”
The D.C. Circuit Court of Appeals decided similarly in the Noel Canning case, making this the second decision against the administration. As two different federal courts ruled similarly on a case involving the power of the executive, the Supreme Court may take this decision as the solicitor general prepares an appeal.
I am not an attorney, but these cases involve an important feature of our government: the balance between Congress and the president. The NLRB argued in an amicus brief that the 3rd Circuit shouldn’t define “recess” because it is a political question, and therefore may express a “lack of respect due coordinate branches of government…"
So essentially the Board wants to preserve the president’s “unilateral appointment authority” when the Senate is out of session; indeed, it means that the Constitution actually affirms the president’s power when Senate is out of session, rather than delimiting the authority of both branches.
We’ve come to expect such authoritative consolidation from this administration, a natural extension of the imperial presidency established under President George W. Bush.
At least this ruling renews my faith in some sort of constitutional rule of law.
The majority ruled that “’the Recess of the Senate’ means only intersession breaks,” essentially placing greater power in the Congress to delimit the President’s appointment power.
I say, “Bravo!” Our state was not built for efficacy or the vanguard of progress, but for deliberation and political wrangling. The partisan deadlock between the Senate and the White House is a rather unfortunate example of such governance, but an example nonetheless.
The Court shouldn’t settle partisan political obstruction, and it didn’t.
However, it did reinforce the constitutional walls so necessary to restrain the political sharks.