Judicial Watch participated in a major victory for the rule of law and the U.S. Constitution – and Barack Obama received a humiliating setback in his ruthless, reckless efforts to “fundamentally transform” America by egregiously exceeding constitutional restraints on presidential power. The Supreme Court – in a stunning 9-0 vote – ruled that Obama overstepped his constitutional authority in bypassing the U.S. Senate to make a series of “recess appointments” to the National Labor Relations Board (NLRB).
In November 2012, JW and the Allied Educational Foundation (AEF) jointly filed an amici curiae brief in National Labor Relations Board v. Noel Canning (No. 12-1281) strongly opposing Obama’s illegal actions. We argued in the amici brief:
The President’s alleged Recess appointments to the NLRB are unconstitutional for the primary reason that the Senate was in session at the time of the purported appointments… The President’s declaration that these sessions were invalid disregards the Senate’s authority to determine and administer its own procedures, including when it will recess and how it will conduct its business.
The Supreme Court unanimously agreed with the position JW and AEF took and, in a rare push-back to Obama’s outrageous rule by executive fiat, declared: “the separation of powers can serve to safeguard individual liberty.” I issued a statement to the press immediately following the historic ruling applauding the decision, but at the same time issuing a solemn warning:
We applaud the Supreme Court’s unanimous judgment that serves to remind this president that he is not king. President Obama, in his lawlessness, has been acting as the “catch me if you can president.” The Supreme Court, to its credit, finally caught and restrained Barack Obama’s lawlessness. Unfortunately, these recess appointments are one of many examples of this president acting outside of his constitutional authority.
On January 4, 2012, Obama recess-appointed three members to the NLRB despite the fact that the U.S. Senate was not in an official recess. Obama’s goal was clearly to pack the then under-staffed NLRB with leftists who shared his political agenda and give the board the quorum it previously lacked to conduct official business. He succeeded in his unilateral power grab to the extent that the NLRB, with its new liberal slant, ruled against a soft-drink bottling company, Noel Canning, saying it had engaged in an unfair labor practice by refusing to enter into a collective bargaining agreement.
Noel Canning fought back, taking its case to court. On July 17, 2013, the Fourth Circuit Court of Appeals held that the NLRB lacked a quorum to decide the case because two of the three members on the board panel had received recess appointments in violation of the Constitution’s Recess Appointment Clause. At the time of the Canning decision, Obama’s press secretary arrogantly shrugged it off, declaring that it only applied to “one court, one case, one company.” Then, the Supreme Court accepted the government’s appeal. And now it applies to the entire country.
JW had been critical of Obama’s sleight-of-hand recess appointments from the get-go (as we have of the many unaccountable czars installed by the president). And on November 25, 2013, we officially registered our objections once again by jointly filing an amici curiae brief with the United States Supreme Court with our friends, the Allied Educational Fund (AEF).
Though previous presidents have made intrasession recess appointments “if they are of substantial length,” the Obama administration was the first to make such appointments during pro forma sessions of the Senate. As I said at the time we filed our amici brief, “Clearly these Obama’s recess appointments are unprecedented power grabs, which if left to stand will turn the constitutional separation of powers on its head.”
Fortunately, they were not left to stand. But, just think about what Obama’s illicit power grab has cost the American taxpayer in time and money. Not only has Obama administration dragged the case through the courts for the past two-and-one-half years, it has wreaked havoc on the NLRB. As the New York Times correctly pointed out:
The board issued 436 decisions during the 18 months when Mr. Obama’s improperly appointed employees worked there. Gregory J. King, a spokesman for the labor board, said there remained about 100 cases on hold in federal appeals courts awaiting a Supreme Court decision about the legitimacy of the recess appointees. In those cases, the appellants are challenging decisions from when the board had the contested appointees; they assert that the board did not have a legitimate quorum to issue those decisions. The great majority of those board decisions may be negated by Thursday’s ruling by the Supreme Court.
Though all nine justices ruled against the president’s power grab, including his own two appointees, the liberal majority did not sufficiently curtail the potential for abuse by presidents of these recess appointments. Justice Scalia agreed with the outcome, but wrote for a minority of justices (and in support of Judicial Watch’s contentions) that the majority’s reasoning did not go far enough to protect the U.S. Constitution’s separation of powers from being undermined by rogue presidents such as Obama. The full opinions are well worth reading if you value the vision of the Founding Fathers and how that vision has been both furthered and undermined by succeeding generations.
George Washington University law professor Jonathan Turley recently said of Obama’s reckless unilateralism, “I think he has crossed the constitutional line.” Just as we did in the Noel Canning case, JW will continue to reinforce that line in a massive educational and legal effort to keep this imperial president accountable to you and the law.