Stephen R. McCutcheon, Jr., Attorney at Law
The Supreme Court unanimously ruled in National Labor Relations Board v. Noel Canning, No. 12-1281, that President Obama’s recess appointments to the NLRB, over the objection of the Senate, were unconstitutional. Faced with opposition to his appointments from the Senate, President Obama had waited until the Senate took a brief holiday break and then appointed his controversial nominees to the NLRB, invoking the Constitution’s provision providing for temporary Presidential appointments when the Senate is in recess.
The form and structure of the Constitution is for the protection of liberty, and the Constitution establishes a system of checks and balances between the branches of government. One such check and balance is the power of the President to appoint “Officers of the United States” “with the advice and consent of the Senate.” An exception to this general rule is the ability of the President to make appointments to fill “all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The justices unanimously rejected President Obama’s assertion that he could circumvent the Senate’s advice and consent role by making “temporary” appointments of nominees rejected by the Senate whenever the Senate took a break, such as for a holiday, but was still in session. The problem for the President was that the “recess appointments” clause of the Constitution applies when the Senate is in formal recess, and the Senate was not actually in recess when he made his disputed appointments to the NLRB.
This balance between the power of the Legislative and Executive branches of government over the appointment to oversee the agencies of the federal government is all the more important where federal bureaucracies such as the NLRB are concerned. Whereas law was previously made through the passage of bills by Congress, with signature by the President, and subsequent adjudications by the courts, Congress and the President have largely delegated all of these functions to the unelected—and largely unaccountable—bureaucracies which makes the Senate’s role in advice and consent to bureaucratic appointments all the more important. For example, we have seen controversial proposals by the NLRB to strip workers of their free exercise of the right to decide whether or not to be represented by a union, such as through the ambush election rule and card check, and other harmful proposals to deny employers legal and other advice during union organizing campaigns. Senatorial advice and consent regarding appointments is an indispensable element of the oversight of federal agencies – and essential to the protection of liberty from bureaucratic overreach.