Tough questioning from the chief justices may mean a victory for the Constitution.
Speculation is running rampant in the nation's capital that the Supreme Court is poised to strike down three purported recess appointments that President Obama used to unconstitutionally manipulate federal labor relations policy.
During oral arguments in National Labor Relations Board v. Noel Canning on Monday, the justices seemed uncomfortable with Obama's Jan. 4, 2012 overreach in which he recess-appointed three members to the NLRB without bothering to wait for the U.S. Senate to recess. Obama's goal was to pack the under-staffed federal body with likeminded leftists and give the NLRB the quorum it previously lacked to conduct official business. A defeat for Obama in this closely watched case could call into question every order issued by the NLRB since the date the appointments were made.
Incidentally, the NLRB itself shouldn't even exist. It is a socialist anachronism left over from the New Deal that Obama uses to create new rules and regulations without having to go the normal route and ask Congress to pass a law. Obama’s toadies at the NLRB are hellbent on making America more like bureaucratic, dysfunctional Europe where labor disruptions and union violence are everyday occurrences.
During oral arguments this week nearly every member of the high court questioned the constitutionality of Obama's NLRB appointments that were apparently carried out contrary to Article 2 of the U.S. Constitution.
Chief Justice John Roberts defended the Senate’s constitutional prerogative to approve nominees as a vital check on an out-of-control executive branch. Senators “have an absolute right not to confirm nominees that the president submits,” he said.
Left-leaning Justice Elena Kagan, an Obama appointee, told government counsel, "The history is entirely on the Senate's side, not your side."
Ruling against the Obama administration could deprive the current president and future presidents of a power that presidents have used since George Washington's administration, the government's lawyer argued.
“That’s the end of the recess appointment power,” Solicitor General Donald B. Verrilli said in a fit of hyperbole. “You write it out of the Constitution.”
A ruling that clamps down on the recess appointment power would “repudiate the legitimacy of thousands of presidential appointments,” Verrilli argued.
Justice Antonin Scalia balked. “You don’t really think we’re going to go back and rip out every [decision made?]” he said.
Lawyers opposing the government denied a ruling against the Obama administration would cause chaos. Various legal mechanisms, including a six-year statute of limitations on agency actions, would prevent a mountain of NLRB decisions from being cast into legal purgatory, they say.
Miguel Estrada, who represented Senate Minority Leader Mitch McConnell (R-Ky.), dismissed suggestions that upholding the D.C. Circuit decision would unleash a “parade of horribles” across the federal government's bureaucracy.
“There will be no parade, and there will be no horribles,” Estrada told the court.
The White House said Monday it expected that the Supreme Court would rubber-stamp Obama's highhanded appointments. “In our view, we're confident that the courts will uphold the president's authority and look forward to resolution of this matter,” White House lie-regurgitator Jay Carney said at a daily briefing.
The lawsuit was brought by Noel Canning, the owner of a soft drink bottling and distribution company who was displeased by a ruling the board made against him after its quorum was restored by the putative recess appointments. Last year the U.S. Court of Appeals for the District of Columbia Circuit sided with Canning and his company, finding that the president may make recess appointments only when the Senate is in recess between numbered sessions of Congress, and only then if the vacancy arose in that same time span.
Two of the three NLRB appointees were professional leftists.
At the time of his appointment Richard Griffin was general counsel for the International Union of Operating Engineers (IUOE). Since 1994 he had served on the board of directors for the AFL-CIO Lawyers Coordinating Committee.
When she was recess-appointed, Sharon Block was Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Block was Senior Labor and Employment Counsel for the Senate Health, Education, Labor, and Pensions Committee where she worked for the late Sen. Ted Kennedy (D-Mass.).
Appointee Terence F. Flynn, who had served as Chief Counsel to NLRB board member Brian Hayes, didn't stick around long enough to influence much at the NLRB. He resigned four months into his term after an official probe was launched into allegations that he unlawfully leaked internal documents to a Republican colleague. Flynn denied any wrongdoing.
Expectations that the recess appointments will be invalidated may not be well-founded.
Many pundits and journalists seem unaware that high court justices like to play devil's advocate, toying with lawyers the way cats playfully maim and torture mice. When this writer attended oral arguments in 2005 in Kelo v. New London, Conn., a haughty, indignant Justice Anthony Kennedy made quite a show of it, sarcastically asking what sounded like hostile questions of New London's city solicitor. Kennedy seemed genuinely enraged that the Connecticut town was trying to dispossess homeowners who didn't want to sell their properties.
But in the end, Kennedy cast the deciding ballot in favor of the local government's unseemly land grab. The landmark eminent domain decision infamously gave local governments essentially unlimited power to seize private property on even the flimsiest "public use" justifications.
Are the misdeeds of America's increasingly despotic chief executive finally catching up with him?
In this post-constitutional era in which the Supreme Court gave its imprimatur to the jurisprudentially promiscuous NFIB v. Sebelius, the vile, nonsensical pro-Obamacare decision that has been aptly compared to Dred Scott v. Sanford, it remains to be seen, what, if any limits to government power the court will see fit to recognize.
We'll know soon enough if the Supreme Court is willing to rein in our lawless president but it's not advisable to hold your breath waiting for fickle politicians dressed in black robes to mete out justice.
Freedom Center pamphlets now available on Kindle: Click here.