“Each time we gather to inaugurate a President we bear witness to the enduring strength of our Constitution.”
That was Jan. 21. The speaker was President Obama. The scene was his second inaugural address at the U.S. Capitol.
Before the week was over, the U.S. Court of Appeals for the District of Columbia cast doubt Jan. 25 on the president’s view of that historic document, ruling he had violated the Constitution to give unions an unfair edge to manipulate the nation’s labor policies.
A three-judge panel unanimously agreed that the president had illegally appointed two pro-union nominees to the National Labor Relations Board while the U.S. Senate was still in session. Doing so allowed the labor advocates to be installed while avoiding examination by Congress.
Once the improperly seated nominees gained official power, they wasted no time handing down union-friendly decisions—219 in fact—one of which tilted against a family-owned beverage bottler and NFIB member, Noel Canning of Yakima, Washington.
NFIB joined in supporting Noel Canning’s challenge that the NLRB could not legally act since its members were not operating within the law.
As proscribed by the Constitution, a president can make appointments to agencies while the Senate is officially in recess, but that was not the case when the appointees’ names were slipped under the door. If upheld, the court’s ruling will call into question other decisions of this backdoor board as well.
NLRB Chairman Mark Pearce, a former union lawyer whom the president had also seated using the recess tactic, rejected the ruling and defiantly promised to continue conducting business-as-usual.
But the trick has also drawn the ire of lawmakers. Ranking Senate Health, Education, Labor and Pensions Committee member Lamar Alexander of Tennessee charged: “These actions fly in the face of the principle of separation of powers, and the very concept of checks and balances against an imperial president.”
NFIB expects the U.S. Supreme Court will weigh in on this ruling and if so, we will continue our fight to bring fairness and equal justice for small firms back to the NLRB.
This is not the first time NFIB has had to intervene to rein in this wayward agency. Not long ago, the NLRB issued an infamous poster rule to force small businesses to display pro-union information posters in worksites, clearly a ploy designed to encourage unionization. We filed a lawsuit to overturn this poster rule in federal appeals court and are hopeful of a favorable decision soon.
In this time of global uncertainty, economic weakness and unchecked government growth, it is disturbing that the president chooses legal chicanery such as recess appointments, regulatory sleights-of-hand and unfunded mandates to execute his unworkable policies.
Leadership that promotes and energizes small-business growth and job creation can bring about America’s economic recovery. But such leadership must be rooted in respect for the enduring strength of our Constitution and faith in the spirit of free enterprise. These ideals seem sorely missing in this administration.