White House Calls NLRB Ruling ‘Unprecedented’

By Fred Lucas | January 25, 2013 | 3:14 PM EST

President Barack Obama and White House Press Secretary Jay Carney. (AP)

(CNSNews.com) – The White House strongly disagreed with a federal appeals court ruling against the recess appointment of members of the National Labor Relations Board at a time when Congress was not in recess.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said Obama did not have the constitutional authority to make three recess appointments to the NLRB on Jan. 4, 2012, because the Senate was officially in session - and not in recess - at the time. If the ruling is upheld, it could call into question hundreds of rulings by the board.

“The decision is novel and unprecedented,” White House Press Secretary Jay Carney said Friday. “It contradicts 150 years of practice by Democratic and Republican administrations. So we respectfully but strongly disagree with the rulings. There have been, according to the Congressional Research Service, something like 280 plus intra-session recess appointments by again Democratic and Republican administrations dating back to 1867. That’s a long time and quite a significant precedent.”

The NLRB appointees were Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn. On the day he named the three NLRB members, Obama also recess appointed Richard Cordray to lead the Consumer Financial Protection Bureau. Obama nominated Cordray again this week and urged Senate confirmation.

Carney insisted the ruling was narrow to “one case, one company, one court.”

Article 1, Section 5, Clause 4 of the Constitution says: “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.”

Because the Republican-controlled House did not allow the Senate to adjourn, neither House was in recess.

In the case of Noel Canning vs. NLRB, the court said, “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”

The decision continued, “An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”

Senate Minority Leader Mitch McConnell (R-Ky.), who filed an amicus brief in the case, strongly approved of the ruling as upholding the separation of powers.

“The D.C. Circuit Court today reaffirmed that the Constitution is not an inconvenience but the law of the land, agreeing with the owners of a family-owned business who brought the case to the Court,” McConnell said. “For the same reasons [laid out by the Court], this decision now casts serious doubt on whether the President’s ‘recess’ appointment of Richard Cordray to the Consumer Financial Protection Bureau, which the President announced at the same time, is constitutional.”

House Oversight and Government Reform Committee Chairman Darrell Issa said the three unconstitutionally appointed members should resign from the board.

“The president, who taught constitutional law, should’ve known better,” Issa said in a statement. “Today’s ruling will certainly cause other opinions unconstitutionally issued by the board to be invalidated. To avoid further damage to the economy, the NLRB must take the responsible course and cease issuing any further opinions until a constitutionally-sound quorum can be established. The unconstitutionally appointed members of the NLRB should do the right thing and step down.”

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