Last Friday the DC Federal Appeals Court ruled that President Obama exceeded Constitutional authority when he appointed several members of the National Labor Relations Board (NLRB) using “recess appointments” rather than the proper method of getting Senate confirmation. The crux of the situation was this: the President decided to simply appoint these people to the board last year and bypass the confirmation process because he considered the Senate to be in recess. The Senate was not in recess, a fact of which he was quite aware and was explicitly told at the time. The Court ruled that the President did not have the authority to appoint those Board members and that makes their appointments invalid. The natural question that follows is: how can decisions and mandates issued by a Board where the majority of the members are not validly seated be, themselves, valid?
I think the plain truth of the matter is they can not. The decisions that have been issued by this Board are, every one of them, invalid and do not have the authority of law behind them. They cannot be considered enforceable, not at all. I understand that that throws a bunch of people and businesses into confusion and I am willing to concede that some of the decisions made by this invalid Board might, might be the right and proper approach to take on the matters in question. But there is no way to consider any of them to be properly authorized when the membership of the Board had no authority to make the decisions in the first place. Every one of the decisions should be considered null, void, and vacated and the matters pertaining thereto should be considered up for discussion and decision again. The President should be required to submit the nominees to the proper process and get Senate confirmation as he was supposed to in the first place. Once the Board has been seated in accordance with the law, they can proceed to handle these issue as they see fit, including re-instituting the decisions and mandates that were done invalidly.
The President is not a king nor an emperor. There are limits to what he can do and those limits are spelled out in the Constitution. One would have thought that a man who supposedly taught the subject of Constitutional law to college students would have had a grasp on where the boundaries of his power lie. This now makes 2 matters – executive authority and the 2nd Amendment – where the President has demonstrated an incorrect judgment on what the Constitution permits. Not a good showing, professor.
Of course, there are matters this invalid NLRB handled that went beyond simply issuing edicts. Their decisions had real-world ramifications and required businesses and individuals to either pay fines or implement processes that cost money and resources. In most of those cases, that’s money and resources the business or individual wouldn’t have spent absent the ruling from the NLRB. They were required to perform these things and the people making the demands had no authority to do so. In all fairness, they are owed that money back. Frankly, this is a situation where lawsuits would be filed, were we talking about a company that over-reached its authority under law or contract. Who do these people take to court to get justice? I believe fairness demands that the party responsible for overstepping their bounds should be held liable and that’s the President.
What’s amazing to me is that the Court ruled that the appointments were in violation of the law and that a Republican Senator is still having to actually propose a bill to make this invalid NLRB stop trying to issue decisions and rules. It should be without question that no further action be permitted by this Board. The Court has ruled. Now, if the White House wants to file for an injunction in applying that decision of the Court until they can appeal to the Supreme Court, then by all means do so. But if they’re not going down that path, then the NLRB needs to halt any action whatsoever until they have a properly confirmed membership seated.