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."
Unconstitutionally operating a federal agency in open defiance of the courts is about as good an example of breaking free from essential constraints as can be imagined, and it may be testing the waters for the outright rejection of the Constitution Seidman proposes.
Given the stakes, it is imperative for Congress to immediately zero out the NLRB's budget in upcoming negotiations over the continuing resolution to fund the federal government. If they instead acquiesce to Obama's apparent act of "constitutional disobedience," they may embolden him to push further towards Professor Seidman's goal of giving up on the Constitution altogether.