The D.C. Circuit Court of Appeals emphatically smacked down the crazy idea that the president has the power to make recess appointments while the Senate is not in recess.
"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," Chief Judge David B. Sentelle wrote. "This cannot be the law."
The decision means the National Labor Relations Board (NLRB), which lacks a quorum to function without the improperly appointed members, should shut down until legitimate board members are confirmed by the Senate. But it won't. White House Press Secretary Jay Carney insisted the decision "does not have any impact, as I think the NLRB has already put out, on their operations or functions, or on the board itself."
So the administration is openly defying the courts and the Constitution. But why? The NLRB has to go to federal court to enforce its orders, and companies can seek review in the D.C. Circuit - the very court that just smacked down the NLRB.
There is some chance the Supreme Court could overturn the decision on appeal, but while they might take a more expansive view of the Recess Appointments power than the D.C. Circuit did, it's hard to imagine they would accept the idea that the president can decide the Senate is in recess, even when the Senate thinks it isn't. And regardless, the D.C. Circuit decision is good law unless and until the Supreme Court says otherwise.
So the continued functioning of the NLRB seems to be, more than anything, an act of "Constitutional Disobedience," a concept now being touted by Georgetown Professor Louis Michael Seidman in a variety of mainstream media outlets.
Seidman was recently given space on the New York Times op-ed page to trash the Constitution, writing: "While we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance." On CBS Seidman insisted we "take back our own country" from the Constitution.
Obama was thinking along similar lines more than a decade ago. "As radical as I think people try to characterize the Warren Court, it wasn't that radical," Obama, then a University of Chicago Law School senior lecturer in constitutional law said in a 2001 radio interview. "It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution."
Phil Kerpen is president of American Commitment, a columnist on Fox News Opinion, chairman of the Internet Freedom Coalition, and author of the 2011 book Democracy Denied.
American Commitment is dedicated to restoring and protecting America’s core commitment to free markets, economic growth, Constitutionally-limited government, property rights, and individual freedom.
Washingtonian magazine named Mr. Kerpen to their "Guest List" in 2008 and The Hill newspaper named Mr. Kerpen a "Top Grassroots Lobbyist" in 2011.
Mr. Kerpen's op-eds have run in newspapers across the country and he is a frequent radio and television commentator on economic growth issues.
Prior to joining American Commitment, Mr. Kerpen served as vice president for policy at Americans for Prosperity. Mr. Kerpen has also previously worked as an analyst and researcher for the Free Enterprise Fund, the Club for Growth, and the Cato Institute.
A native of Brooklyn, N.Y., Mr. Kerpen currently resides in Washington, D.C. with his wife Joanna and their daughter Lilly.