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SCOTUS to Decide Landmark Recess Appointment Case

The opinions expressed by columnists are their own and do not necessarily represent the views of

In the coming days, the U.S. Supreme Court will hear oral arguments in the case of Noel Canning versus the National Labor Relations Board (NLRB). This case arose when President Obama made several so-called recess appointments to the Board on January 4, 2012 when the Senate was not formally in recess. This landmark case is expected to determine how much leeway the President has to make appointments without Senate confirmation, and more significantly, it will have serious implications on the broader powers of the presidency itself and the system of checks and balances.


The United States Court of Appeals for the District of Columbia Circuit already correctly ruled that these appointments were unconstitutional. The most significant reason President Obama’s actions are inconsistent with the law is the NLRB “recess” appointments were made when the U.S. Senate was in continuous “pro forma” sessions, meaning that the Senate was not actually in recess. The President merely declared that Senate was in recess and arrogated himself the authority to make the appointments.

The court’s findings show that President Obama has set a very dangerous precedent by completely bypassing the traditional nomination process and circumventing the Senate’s constitutional authority to advise and consent. The framers never intended for any president to have the unilateral power to appoint people to high-level positions except during a legitimate recess; hence, the U.S. Constitution specifically included a clause that gave the Senate the power to give its "advice and consent" to presidential appointments. As many of our county’s students learn, the framers created a system of checks and balances, for the purpose of avoiding presidential overreach.

President Obama effectively circumvented the Senate’s advice and consent, preventing any due process from taking place. In fact, two nominees failed to complete a Senate committee’s basic questionnaire that would have disclosed potential conflicts of interest, let alone the scrutiny of testifying before the U.S. Senate Committee on Health, Education, Labor and Pensions. This vetting should and quite possibly would have disqualified Obama’s nominees from taking office in the first place.


Then-nominees and now-General Counsel Richard Griffin and Board Member Sharon Block, Obama’s two recess appointments in question, have a dubious past of advocacy on behalf of the unions and in some instances a much more sordid history. Most notably, Richard Griffin was previously a lawyer for one of the country’s largest labor unions and according to The Wall Street Journal was “named as a defendant in a federal racketeering lawsuit that claims he was complicit in covering up a union embezzlement.” On the other hand, Sharon Block worked as a labor counsel for one of organized labor's most partisan supporters and has routinely sided with them in matters before the Board. Griffin and Block’s close ties to Big Labor is categorically defined as a conflict of interest at a federal agency where the government is supposed to act as an impartial arbiter between businesses and unions.

When the National Labor Relations Board was first constituted by Congress, George Meany, the former president of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), was vociferously against the appointment of labor lawyers who had represented either unions or employers because he believed that they would not be able to act neutrally.

Times have changed and President Obama is completely beholden to his union boss friends, which ultimately led him down this disastrous path, including nominating someone to the Board who came directly from organized labor. The President, a former constitutional law professor, knows better and his actions are those of someone exhibiting willful ignorance. More significantly it is a breach and overstep of presidential powers that our Founding Fathers sought to protect our country from.


When outside influences and special interest groups are able to successfully infiltrate the government and exert their influence over elected officials in a quest to seek preferential labor policies, it is bad for business and bad for our country. While the Supreme Court should certainly strike down Obama’s appointments as unconstitutional, it is not enough. Congress must go a step further, and take it upon itself to reform the NLRB, so that the Board and its members cannot carry the water of the President’s political donors as opposed to functioning as a reputable, taxpayer-funded independent agency, which it falsely claims to be.

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