White House Press Secretary Jay Carney blasted today’s Federal Appeals Court ruling that declared the President’s recess appointments to the National Labor Relations Board were unconstitutional. Carney presented a defiant attitude, attacking Senate Republicans, while claiming the court ruling only affects one case before the NLRB. Carney added the three appointees cited in the case would remain in their positions at the agency.
The appointments were made by the President when the Senate took a 20 day break in January of 2012. Senators returned every three days for Pro Forma sessions designed to prevent the Senate from going into recess. The President decided on his own accord that the Senate was in recess despite the insistence of Republican Senators they were still in session. Obama made his appointments and the Republicans blew a gasket.
After a bottling company called Noel Canning was hit with an unfavorable ruling by the NLRB, they sued, claiming the ruling was illegal because three members of the NLRB were illegally appointed. Republican Senators joined the suit, the President lost and received a major rebuke in the process. Now Obama is fuming mad and he is rolling out all the big guns in an attempt to put the blame on the Republicans.
Obama’s push-back against the court decision began innocently enough, with Carney making his afternoon statement from the White House. While refusing to say whether or not the White House will appeal the ruling, he repeatedly insisted the ruling would not be upheld by the Supreme Court.
Carney called the decision by the three Federal judges “novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations.”
Carney completely ignored the fact that the judges cited constitutional precedent repeatedly in their decision. They were quite specific when they pointed out that until 1867 there were no recess appoinments and in the next 80 years there were only three. The judges said this showed “an assumed absence of [the] power to make such appointments.” It is only since the Truman era that Presidents began to vastly expand their use of Executive Privilege, thus blurring or ignoring the separation of powers between three branches of the Federal Government.
Once Carney was done making his comments, the Democrats trotted out AFL-CIO President Richard Trumka, the man who boasts about his weekly visits to the White House. Trumka is roaring mad over the courts decision, which he sees as an attack on organized labor:
“In a radical and unprecedented decision, the court has interpreted the Constitution in a way that would deprive both Republican and Democratic presidents of a critical tool they have used hundreds of times over the years—including 179 appointments by former President George W. Bush and 139 appointments by former President Clinton—to keep agencies functioning and make the government work. In this case, the affected agency is the National Labor Relations Board—a crucially important agency that enforces workers’ rights.”
“We strongly disagree with the court’s reasoning and decision. We fully expect this radical decision to be reversed, and that other courts addressing this issue will uphold the president’s recess appointment authority. In the meantime, the appointees to the National Labor Relations Board remain in their jobs and the NLRB remains open for business.”
Trumka couldn’t risk resist the temptation to “Blame Bush,” mentioning that Bush the Younger made 179 recess appointments Carney also used this tired old canard when he spoke about the Federal Court ruling. Will the Democrats ever tire of blaming Bush?
Even more astonishing to many observers was the manner in which Trumka spoke for the NLRB, as if he, and not the Government, runs the agency. Trumka needs to be reminded that the role of the NLRB is not to enforce workers right, but to arbitrate impartially in disputes between labor and management. Trumka’s attitude is prime example of why the Republicans are so concerned about who the President appoints to the NLRB.
Democrats also complained loud and often this afternoon about the Republican’s use of Pro Forma sessions to keep the Senate from going into recess. They neglected to mention that Democratic Senators, under the urging of Harry Reid, used the same tactic to great effect on several occasions in 2007 to prevent President Bush from making recess appointments.
On the other side of the aisle the Republicans congratulated the court for their brave ruling in favor of the Constitution. Darrel Issa seemed to be quite pleased with himself as he took the President to task for making the appointments in the first place:
“The president, who taught constitutional law, should’ve known better. As the Oversight Committee examined in a hearing a year ago, President Obama’s appointments looked like an obvious election-year pander to big labor bosses. Today, we know that it is American workers who are going to pay the price for the administration’s arrogant miscalculation.”
House Speaker John Boehner, criticized Obama for using the NLRB as a weapon to hurt the American economy:
“The Obama administration has consistently used the NLRB to impose regulations that hurt our economy by fostering uncertainty in the workplace, and telling businesses where they can and cannot create jobs. Instead of operating under a shroud of controversy, the NLRB should meet the highest standards of transparency, starting with having its members approved by the people’s representatives.”
All in all, this is an interesting match up. On the one hand, we have a President who is quite willing to push the limits of Executive Power as far as he can and as often as he can. The Republicans are still furious at the NLRB for going after Boeing when the airline manufacturer tried to open a new plant in South Carolina.
Senate Republicans made it clear, after the ruling was announced in Washington, D.C., that they expect the three members of the NLRB in the case to resign immediately. The White House indicated that no resignations will be forthcoming from the recess appointees and Richard Griffin, Sharon Block, and Terence Flynn will be at their desks at NLRB headquarters bright and early Monday morning.
The battle lines have been drawn and who will win is any one’s guess. After the Supreme Court ruling on Obamacare, very few people are willing to venture a guess how the nine Justices on America’s highest court will decide any case; even one with a clear cut Constitutional precedent.