DC Appeals Court rules Obama NLRB appointments unconstitutional

A DC Appeals Court ruled President Obama's NLRB appointments unconstitutional. Yet conservatives should keep the champagne bottles corked. Photo: Associated Press

LOS ANGELES, January 26, 2013 — The Federal Appeals Court of DC issued the biggest court decision since Obamacare. This time, President Obama was on the losing side. In a unanimous decision, the Court ruled that Obama’s recess appointments to the National Labor Relations Board were unconstitutional.

While the decision may seem like “inside baseball,” it has far reaching implications. If the appointments were unconstitutional, then his three appointed nominees never served to begin with. Every decision they made could be invalidated. President Obama wanted to stack the NLRB with pro-union individuals, in keeping with his philosophy. Removing them from the board is a major victory for conservatives and pro-business groups and a stinging rebuke for the former Constitutional Law professor.

Yet conservatives may wish to keep the champagne bottles corked. Of all the times conservatives deserved to defeat President Obama in the arena of ideas, this decision may not have been one of them. The ruling should give conservatives pause. In the short run, conservatives “won,” but perhaps not in the long run.

At issue is the notion of what constitutes a “recess” appointment. Presidents have the absolute authority to make recess appointments without Senate approval. Those appointments are temporary. Recess appointments are never popular, but they are legal. This is not in dispute. The situation becomes murky when the Senate holds “pro-forma” sessions.

A pro-forma session in recent years has involved the Senate opening for as little as thirty seconds where one person shows up and bangs a gavel. In other words, even though little to no work is done at many of these sessions, it counts as an actual session. This is designed specifically to avoid being categorized as a recess, even if most members are gone for several weeks.

President Obama argued that these pro-forma sessions were a complete sham. On this issue, he is right. They violate the spirit of the law. Obama critics will not find much sympathy for him given that he has repeatedly violated the spirit of the Constitution in trying to go around Congress. In this case he was finally beaten at his own game.

Yet what if Democrats did this to a Republican President? Conservatives would go ballistic, and rightfully so.

This does not mean the Appeals Court was “wrong.” They looked at the blackletter law. Attacking violations of the spirit of the law would be judicial overreach, and conservatives would scream about judicial activism.

The solution is to reform pro-forma sessions. Banning them outright may not be feasible, but perhaps requiring a quorum would be one positive step. The government should not be in “partial recess” the same way a woman cannot be partially pregnant. Either the Senate is “open for business” or it is closed. Open for business does not just mean turning the lights on. The janitor can perform that task. The actual work has to be performed.

President Obama won the election. It is expected that a man of the far left would nominate individuals that would be anathema to conservatives. The issue is not whether they are good or bad, since that will almost always be subjective in the hyper-partisan climate of Washington. The only issue is whether the Constitution is being followed. On so many occasions, President Obama has sneered at what he refers to pejoratively as “a charter of negative liberties.” Yet his arrogance is a personality trait. It has no bearing on the law itself.

From a political standpoint, conservatives have every right to see an out-of-control President Obama finally for once be humbled and hoisted on his own petard. The irony is that it occurred on one of the only times where he actually had the moral high ground.  This ruling was poetic justice, but not necessarily judicious.


Brooklyn born, Long Island raised, and now living in Los Angeles, Eric Golub is a politically conservative columnist, author, satirist, and public speaker. Eric is the author of the book trilogy “Ideological Bigotry, “Ideological Violence,” and “Ideological Idiocy.”

Eric is 100% alcohol, tobacco, drug, and liberalism free. Follow Eric on Twitter @TYGRRRREXPRESS. Follow us: @wtcommunities on Twitter

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Eric Golub

Eric Golub is a politically conservative Jewish blogger, author, public speaker, and comedian. His book trilogy is “Ideological Bigotry,” “Ideological Violence,” and  “Ideological Idiocy.” 

He is Brooklyn born, Long Island raised, and has lived in Los Angeles since 1990. He received his Bachelors degree from the University of Judaism, and his MBA from USC. A stockbrokerage professional since 1994, he began blogging on March 11th, 2007, the three year anniversary of the Madrid bombings and the midpoint of 9/11. He has been inflicting his world view on his unfortunate readers since then. He blogs about politics Monday through Friday, and about football and other human interest items on weekends.



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