President Barack Obama’s unconstitutional recess appointments might be struck down by a federal court, with a heavyweight legal challenge now carrying the torch for the U.S. Senate in this challenge.
Senior officers in the executive branch of government must be nominated by the president, and then be confirmed by the Senate. Article II of the Constitution says that if the Senate is in recess, the president can appoint those government officers without Senate confirmation, but those appointments are temporary and only last two years at most.
In January, Obama became the first president in history to declare the Senate in recess when the Senate was actually in session. Citing this non-existent “recess,” Obama then appointed three new members, including two big-labor activists, to serve on the National Labor Relations Board (NLRB).
Pro-business groups promised legal challenges to this unconstitutional power grab. NLRB has five members, and requires at least three to have a quorum to conduct business. There were only two members on the board before these recess appointments. If those appointments are unconstitutional, then NLRB cannot legally issue regulations or decide labor complaints.
After these illegal appointments, NLRB issued a labor ruling against Noel Canning, a division of an American corporation. That company has petitioned the U.S. Court of Appeals for the D.C. Circuit, arguing that NLRB’s order is illegal due to the lack of a quorum.
The odds of this challenge succeeding just got a boost. Senate Republicans hired Miguel Estrada to file a brief on behalf of the U.S. Senate to argue that Obama’s recess appointments are unconstitutional. Miguel Estrada is a Supreme Court ninja, who was nominated by President George W. Bush to be a judge on the D.C. Circuit but then was famously filibustered by Senate Democrats for the appalling reason that Estrada was being groomed for the Supreme Court, and Democrats didn’t want a Republican to nominate the first Hispanic to the High Court.
What goes around comes around. In an irony worthy of Shakespeare, denying this lawyer a seat on the D.C. Circuit means he’s available to convince the D.C. Circuit–and the Supreme Court if necessary–to declare Obama’s big-labor picks unconstitutional.
Breitbart legal contributor Ken Klukowski is on faculty at Liberty University School of Law.