FedSoc Blog

NLRB Ignores D.C. Circuit’s Recess Appointment Decision

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by Publius
Posted January 29, 2013, 9:52 AM

According to a Wall Street Journal editorial:

President Obama's second term could really be something. In the latest disdain for the Constitution's checks and balances, the National Labor Relations Board has declared that it doesn't like the D.C. Circuit Court of Appeals Friday ruling that three board members were illegally appointed so it plans to ignore it.

"The Board respectfully disagrees with today's decision and believes that the President's position in the matter will ultimately be upheld," Chairman Mark Pearce said in a statement. "It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

"In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."

So, let's see. First, President Obama bypasses the Senate's advice and consent power by making "recess" appointments while the Senate was in pro-forma session specifically to prevent recess appointments. Then when a federal court rules the recess appointments illegal, the NLRB declares that it will keep doing business as if nothing happened.

Without Mr. Obama's illegal appointments, the board would have been without a quorum and unable to decide a single case. That lawless behavior means more than 200 of the NLRB's rulings in the past year are in limbo. It's bad enough to force those 200 litigants to appeal rulings that are sure to be overturned. But the board wants to keep issuing new rulings though it now knows that a unanimous appeals court has declared them illegal, pending a Supreme Court review that may never happen.

Mr. Obama can legally reconstitute the NLRB by getting his appointees confirmed by the Senate. Meantime, Nebraska Senator Mike Johanns is right to call on the illegal members to resign. If they won't, Congress should stop funding the NLRB as soon as the continuing spending resolution expires in March.

 

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