The U.S. Court of Appeals for the District of Columbia ruled today that President Obama violated the Constitution when he made three recess appointments to the National Labor Relations Board last January.
The Obama Administration is expected to appeal the ruling to the U.S. Supreme Court but if the Appeals Court decision is upheld, some fear that it would violate all decisions that the National Labor relations Board has made since last January.
The NLRB itself and the White House are saying, however, that this will not be the case.
“This court decision does not affect this operation, their (the NLRB’s) ability to function,” White House press secretary Jay Carney told the press today.
The Appeals Court in D.C. said that the President did not have the power to bypass the Senate and make the appointments.
The labor movement reacted quickly to the ruling with outright condemnation.
“Today’s decision by a panel of Republican judges on the DC Circuit is nothing less than shocking,” AFL-CIO President Richard Trumka said in a statement, adding that he fully expects “this radical decision to be reversed, and that other courts addressing thjs issue will uphold the President’s appointment authority.”
The labor movement is concerned about GOP attempts to cripple the NLRB because the board has traditionally been an important avenue used by workers in response to corporate attacks on their right to organize, among other rights at the workplace. The board came into existence in the 1930’s as part of the Wagner Act and was charged by Congress at that time with guaranteeing that companies adhered to labor law. The Wagner Act under which the NLRB was created spelled out specifically that it is the policy of the United States Government to encourage collective bargaining.
When George W. Bush was president he stacked the board with Republican appointees who most often sided with business in the many labor disputes that came before the board. President Obama has tried to restore the board to its original purpose – protection of the rights of workers.
President Obama has said his appointments were legitimate because they were constitutional recess appointments, made legally when the Senate was away during a 20-day holiday recess a year ago. The all-Republican panel of three Appeals Court judges disagreed, ruling instead that the Senate was in session because it was gaveled in and out every few days during that recess.
The Administration argues that the gaveling in and out of session was merely a tactic used to prevent the president form making recess appointments which Obama was forced to make because the Republicans have repeatedly filibustered the nominees he sent to the Senate.
The Appeals Court ruling also raises questions, some say, regarding the President’s appointment of Richard Cordray to head the Consumer Finance Protection Bureau.
That appointment was also made last January during the same recess.
The Administration says it was forced to resort to the recess appointment method in Cordray’s case because Republicans in the Senate have blocked Obama from naming someone to head the consumer protection unit ever since it was established two years ago. Obama’s first nominee to that position, Elizabeth Warren, was never allowed to take the position and eventually ran for and won a seat in the U.S. Senate instead.
Carney also said today that the ruling will have “no bearing” on Cordray, adding “It simply doesn’t as a legal matter.”
Mr. Cordray’s appointment is now being challenged, as were the NLRB appointments, in a lawsuit.
This week the President announced that he was again nominating Mr. Cordray to that position, saying he hoped the GOP would not block his confirmation again.
The NLRB ruling leaves the Labor Board with only one valid member – its chairman, Mark Gaston Pearce, who was confirmed by the Senate.
Under a 2010 Supreme Court decision, the NLRB, which has five seats, is authorized to make rulings only when it has three or more sitting members.
The president made three recess appointments to the board last January. Two, Deputy Labor Secretary Sharon Block and the general counsel to the operating engineers union, Richard Griggin, were Democrats and one, attorney Terence Flynn, was a Republican. Flynn quit the board last May after a scandal broke regarding his leaking of internal NLRB deliberations.
Carney said there has been “enormous frustration” at the White House with the Senate’s refusal to approve nominees and that the ruling Friday “contradicts 150 years of practice by Democratic and Republican administrations. So we respectfully but strongly disagree with the ruling.”
The Republican judge who wrote the opinion coming down against the Obama administration was David Sentelle, a Ronald Reagan appointee who served many years as an aide to the arch segregationist, ,Sen. Jesse Helms.
Photo: Obama with Cordray before appointment. AP Photo.