Appeals Court Holds Obama Recess Appointments To NLRB Unconstitutional

Finally, one of Obama's many overreaches has been smacked down - and this one is important. A three judge panel of the U.S. Court of Appeals for the D.C. Circuit has unanimously held that Obama's recess appointments of radical pro-union individuals to the NLRB, made last year while the Senate was still in pro forma session. are unconstitutional. This means that the decisions of the NLRB made during the past year are invalid. Further, it means that the NLRB is down to one lawful member. The NLRB requires a quorum of at least three members to issue decisions. Thus, it is currently shut down. It really needs to stay that way for the next four years.

This from the AP:

. . . The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions.

The ruling also throws into question Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, also made under the recess circumstance, has been challenged in a separate case.

Obama claims he acted properly in the case of the NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called "pro forma" sessions.

GOP lawmakers used the tactic — as Democrats have in the past as well — to specifically to prevent the president from using his recess power. GOP lawmakers contend the labor board has been too pro-union in its decisions. They had also vigorously opposed the nomination of Cordray.

The Obama administration is expected to appeal the decision to the U.S. Supreme Court, . . .

The Appeals Court reached the correct decision on the law. As to what the Supreme Court will do, I have no faith the John Roberts will decide based on the law rather than politics. We will have to wait and see what happens.

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Some Micro Union Schadenfreude

One of the things are nation will have to undo post Obama is the destruction his union controlled National Labor Relations Board - originally designed to be a neutral arbiter - is doing to our nation with their countless decisions favoring unions over business. Perhaps the most damaging of their decisions has been to allow the creation of micro unions - the ramifications you can read about here. It becomes all the more enjoyable when one of these horrendous rules back-fires on the unions. With that preamble, let me suggest that you sit back and enjoy the spectacle of the Teamsters being hoisted on their own micro-union petard:

It was just a few months ago when Obama’s National Labor Relations Board ruled that the International Brotherhood of Teamsters union had engaged in union busting and ordered the union to stop harassing its own union organizers for wanting their own union. Now, a Teamsters union local in Memphis is fighting its two clerical workers from unionizing with the Steelworkersand – again, the Obama labor board is having none of it.

In November, the regional office of the NLRB held a hearing to determine whether or not two clerical workers employed by Teamsters local 667 should be allowed to unionize by the United Steelworkers International Union.

Like the vast majority of employers, the Teamsters hired an outside lawyer.

In the NLRB’s Decision and Direction of Election [PDF], the Acting Regional Director notes that the Employer [the Teamsters] tried to claim that one of the two clerical employees the Steelworkers is trying to unionize should be ineligible because she is confidential.

In its brief, the Employer [the Teamsters] takes the position that one of the two office clerical employees, [name] , is a confidential employee and should be excluded from the petitioned-for unit. The Employer also asserts that the petition should be dismissed because a one-person bargaining unit consisting, of the other office clerical employee, [name] , is not appropriate. The Petitioner asserts that neither clerical employee is a confidential employee and that the petitioned-for unit, as amended, is appropriate. The Petitioner [the Steelworkers] asserts that neither clerical employee is a confidential employee and that the petitioned-for unit, as amended, is appropriate.

If the NLRB found that the one employee was a confidential employee, she would have been excluded from being in a bargaining unit and the unit would have been inappropriate since there must be two or more.

The Acting Regional Director found that the individual was not confidential and, as a result, order an election to be held.

Ahhh, schadenfreude. You can read the rest of the story here.

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Obama Blatantly Violates A Broken Constitutional Process

[The President] shall have Power, by and with the Advice and Consent of the Senate, to . . . appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . .

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

U.S. Constitution, Art. II, Sec. II.

The other day, the President unilaterally appointed former Democratic Ohio attorney general Richard Cordray to the new Consumer Financial Protection Bureau and, further, appointed three people to the NLRB. In doing so, Obama bypassed the Senate's right to provide "advice and consent" to the appointments, and Obama made the appointments while the Senate was still in session. Obama's actions are outrageous. As Constitutional experts John Yoo from the right and Richard Epstein from the left agree, Obama's action violate the plain language of the Constitution. As Roger Pilon sums this up at Cato:

So what is this? It’s politics — Chicago politics, plain and simple. If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it.

This highlights a systemic problem with the whole recess appointment / advise and consent process. One, the President's powers of recess appointment are an anachronism. When this clause was approved in 1787, Congressmen traveled about on horse and in buggies. Congressional recesses could last several months. Today, the reality is that recesses rarely last even a month, and in an emergency, Congress could be reconvened in a day. There is no justification for the recess appointment power today. Its only use is to get around the Constitutional requirement that the Senate consent to the Presidential appointment. That was never its intended purpose.

That said, if there are to be no more recess appointments, then it behooves the Senate to stop filibustering Presidential appointments and give them an up or down vote. The Senate's use of the filibuster to prevent an up or down vote is, in its own way, as much a violation the spirit of the duty to "advise and consent" as is the President's use of recess power to go around the Constitutional duty to receive Senate consent. The current system promotes only gridlock and excessive politicization. Changes to both the recess power and Senate treatment of nominees would lead to a much better and more democratic system.

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Getting Around Democracy: The Heritage Foundation's Worst Regulations Of 2011

Obama's war on prosperity has resulted in a bumper crop of poisonous regulation this year.  Most, but not all, are the result of regulatory bureaucracies operating outside the constraints of democratic rule and used by Obama to accomplish what he could not get through even a fully Democratically controlled Congress.  Here is the list from the Heritage Foundation of the worst of the worst of it all in 2011.  Particularly as respects the NLRB and the EPA, the list could have been much longer:

1. The Dim Bulbs Rule. As per Congress, of course, for issuing an edict to phase out the incandescent light bulbs on which the world has relied for more than a century. With the deadline looming in 2012, Americans by the millions spent the past year pressing lawmakers to lift the ban which, contrary to eco-ideology, will kill more American jobs than create “green” ones. (Congress evidently overlooked the fact that the vast majority of fluorescent bulbs are manufactured in China.) The 2012 appropriations bill barred the use of funds to enforce the regulation, but it remains in law.

2. The Obamacare Chutzpah Rule. The past year was marked by a slew of competing court rulings on the constitutionality of the individual mandate, the cornerstone of Obamacare. The law requires U.S. citizens to obtain health insurance or face financial penalties imposed by the Internal Revenue Service. Never before has the federal government attempted to force all Americans to purchase a product or service. To allow this regulatory overreach to stand would undermine fundamental constitutional constraints on government powers and curtail individual liberties to an unprecedented degree.

3. The Nationalization of Internet Networks Rule. Regulations that took effect on November 1 prohibit owners of broadband networks from differentiating among various content in managing Internet transmissions. (In other words, the Federal Coercion Communications Commission effectively declared the broadband networks to be government-regulated utilities.) The FCC imposed the “network neutrality” rule despite explicit opposition from Congress and a federal court ruling against it. The rule threatens to undermine network investment and increase online congestion.

4. The Equine Equality Rule. As of March 15 (the Ides of March, no less), hotels, restaurants, airlines, and the like became obliged to modify “policies, practices, or procedures” to accommodate miniature horses as service animals. According to the Department of Justice, which administers the rule, miniature horses are a “viable alternative” to dogs for individuals with allergies or for observant Muslims and others whose religious beliefs preclude canine accompaniment.

5. The Smash Potatoes Regulation. The U.S. Department of Agriculture proposed stricter nutrition standards that would prohibit school lunch ladies from serving more than one cup per week of potatoes per student. Instead, schools would be required to provide more dark green, orange, and dry bean varieties (think kale) in order to foster vegetable diversity. The cafeteria mandate will affect more than 98,000 elementary and secondary schools at a cost exceeding $3.4 billion in the next four years.

6. The Bring on the Blackouts Rule. The EPA is proposing to force power plants to reduce mercury by 90 percent within three years—at an estimated cost of $11 billion annually. A significant number of coal-fired plants will actually exceed the standard—by shutting down altogether. Indeed, grid operators, along with 27 states, are warning that the overly stringent regulations will threaten the reliability of the electricity system and dramatically increase power costs. Just like candidate Obama promised.

7. The Wal-Mart Windfall Amendment. One of hundreds of new regulations dictated by the Dodd–Frank financial regulation statute requires the Federal Reserve to regulate the fees that financial institutions may charge retailers for processing debit card purchases. The prospect of losing more than $6 billion in annual revenue is prompting financial institutions to hike fees on a variety of banking services to make up for the much smaller payments from stores. Thus, consumers are picking up the tab for retailers’ big regulatory score.

8. The Plumbing Police Rule. The U.S. Department of Energy began preparations for tightening the waterefficiency standards on urinals. It’s all spelled out in excruciating detail in the Energy Conservation Program for Consumer Products Other Than Automobiles, which also regulates the efficiency of toilets, faucets, and showers. And refrigerators and freezers, air conditioners, water heaters, furnaces, dishwashers, clothes washers and dryers, ovens and ranges, pool heaters, television sets, and anything else the Energy Secretary deems as electrically profligate. (Urinals also are regulated by the Occupational Safety and Health Administration, which requires at least one urinal for every 40 workers at a construction site for companies with less than 200 employees and one for every 50 workers where more than 200 are employed. The Americans with Disabilities Act also delineates the proper dimensions and placement of bowls.)

9. The Chill the Economy Regulation. The EPA issued four interrelated rules governing emissions from some 200,000 boilers nationwide at an estimated capital cost of $9.5 billion. These boilers burn natural gas, fuel oil, coal, biomass (e.g., wood), refinery gas, or other gas to produce steam, which is used to generate electricity or provide heat for factories and other industrial and institutional facilities. Under the so-called Boiler MACT, factories, restaurants, schools, churches, and even farms would be required to conduct emissions testing and comply with standards of control that vary by boiler size, feedstock, and available technologies. The stringency and cost of the new regulations provoked an outpouring of protest, including 21 governors and more than 100 Members of Congress. On May 18, the EPA published a notice of postponement in the Federal Register, but the regulations remain on the books.

10. The Unions Rule Rule. New rules require government contractors to give first preference in hiring to the workers of the company that lost the contract. Tens of thousands of companies will be affected, with compliance costs running into the tens of millions of dollars—costs ultimately borne by taxpayers. The rule effectively ensures that a non-unionized contractor cannot replace a unionized one. That’s because any new contractor will be obliged to hire its predecessors’ unionized workers and thus be forced by the “Successorship Doctrine” to bargain with the union(s).

(H/T Daily Gator)

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Boeing & Obama's War On The Free Markets In Support Of Unions

This from the NYT:

In what may be the strongest signal yet of the new pro-labor orientation of the National Labor Relations Board under President Obama, the agency filed a complaint Wednesday seeking to force Boeing to bring an airplane production line back to its unionized facilities in Washington State instead of moving the work to a nonunion plant in South Carolina.

In its complaint, the labor board said that Boeing’s decision to transfer a second production line for its new 787 Dreamliner passenger plane to South Carolina was motivated by an unlawful desire to retaliate against union workers for their past strikes in Washington and to discourage future strikes. The agency’s acting general counsel, Lafe Solomon, said it was illegal for companies to take actions in retaliation against workers for exercising the right to strike.

Although manufacturers have long moved plants to nonunion states, the board noted that Boeing officials had, in internal documents and news interviews, specifically cited the strikes and potential future strikes as a reason for their 2009 decision to expand in South Carolina.

Boeing said it would “vigorously contest” the labor board’s complaint. “This claim is legally frivolous and represents a radical departure from both N.L.R.B. and Supreme Court precedent,” said J. Michael Luttig, a Boeing executive vice president and its general counsel. “Boeing has every right under both federal law and its collective bargaining agreement to build additional U.S. production capacity outside of the Puget Sound region.”

It is highly unusual for the federal government to seek to reverse a corporate decision as important as the location of plant.

But ever since a Democratic majority took control of the five-member board after Mr. Obama’s election, the board has signaled that it would seek to adopt a more liberal, pro-union tilt after years of pro-employer decisions under President Bush. . . .

This is such a vast overreach by Labor and its cronies in the Obama administration - it is such a fundamental attack on capitalism - it is difficult to know where to begin. As a threshold matter, the anti-retaliation provisions of the NLRA protect individuals from being fired or demoted for their union activities. The Obama radicals on the NLRB now seek to vastly expand the scope of those provisions to a point that corporations would become captives of unionized, closed shop states.

Unions are an anachronism of the communist movement near two centuries old - which itself was a response to inequities that arose early in the Industrial Age, something that has long been consigned to the history books. There is a reason unions are drastically declining in the private sector in the U.S.. They do not make economic sense in an age of vast national wealth where competition for labor and the mobility of labor insures that laborers will be able to receive fair market value.

It is beyond any form of contention that, where unions exist, the end product is at best, substantially more expensive than that produced by non-union labor, such as with automakers, or in the worst case, substantially lessens the quality of the service being delivered, as is the case with teachers unions and public education. Further, the reality is that in "closed shop" states, unions create a form of indentured servitude, where to even work in a desired field, a laborer must pay a union for the privilege. The laborer then has no say in how the union uses those dues. Whatever justification for unions existed in 1848, when Marx, in the Communist Manifesto, described unions as the building blocks of his Communist utopia, those justifications do not exist in America today.

The only thing that can possibly save private sector unions in the U.S. is the point of the gun by the government. And indeed, that is what we are seeing today with Obama's NLRB outrageously trying to use the police power of our government to force Boeing to keep all production in Washington.

The only reason unions still exist in America, both public sector and private sector, is that they are economic base of the Democratic party. It is hard to think of a more corrupt or malign situation. When the administrations change in 2012, it is time to go to war on unions - outlawing public sector unions and changing the rules for private sector unions. No place in America should be subject to a "closed shop," the U.S. government should never favor unions in its contracting, and the NLRB should be disbanded.

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Obama's Radical Friends - & Appointments

Over the weekend, Obama used his power to make recess appointments to appoint Craig Becker to the National Labor Relations Board. This is an incredibly radical appointment as Becker, former counsel for the AFL-CIO and the SEIU is pro-union to a degree that would make an old Soviet proud. As the Washington Examiner explains some of his more radical positions:

Craig Becker . . . claims management should be barred from National Labor Relations Board hearings on labor-management disputes, and he is a strong advocate of Card Check, the union bosses' proposal to do away with secret ballots in workplace representation elections. . . .

So why is President Obama using his power of recess appointments -- the right of a president to put somebody in an executive branch position until the next Congress convenes, which in the present case will be January 2011 -- to install Becker as the deciding vote on the NLRB? The answer to that question, of course, starts with what the five-member NLRB does, which is oversee the administration of the National Labor Relations Act, the basic rule book for labor-management relations since it was signed by FDR in 1935. There is also the fact that last month Becker's nomination fell eight votes short of the 60 needed to defeat a threatened Republican filibuster in the Senate, which left a recess appointment as the only way Obama could get his man on the NLRB.

Expect Becker to come on like a man possessed once he is ensconced at the NLRB because nobody expects the next Congress to be any more receptive to his appointment than the current one. But nine months of Becker on the NLRB is better than nothing, especially because the Senate has been markedly unsympathetic to Card Check, despite it being the union bosses' No. 1 legislative priority.

This insane appointment is one that could well damage our already weak economy - changing the relationship between employers and unions in fundamental ways - and all outside the ballot box.

Of course, this is far from Obama's only appointment of radical individuals far outside the mainstream. Let's go down a short list:

Andy Stern - as head of the SEIU, represents numerous public sector union employees - the scourge of state and local budgets across America. Public sector unions operate outside of market forces and have every reason to seek bigger government and higher taxes. Obama appointed Stern to his deficit reduction commission which is to do the job of Congress and the President in deciding how to direct the future of taxes and spending in America.

Kevin Jennings - a radical homosexual who advocates sexualizing our children beginning at Kindergarden and, in the past, has taught "fisting" to students as young as fourteen years old. This man has no business being allowed near a single child, yet he was given an appointment outside of Congressional purview as Obama's Safe Schools Czar.

David Axelrod - Obama's counterpart to Karl Rove; is a purely political advisor with no experience in the military or in intelligence. What makes Axelrod a radical choice is that Obama includes him not merely in political decision making, but in all aspects of Presidential decision making, including military and intelligence decisions. That is a radical change from prior Presidents and marks the fact that Obama sees everything, including our national security, as subordinate to political concerns.

John Holdren - Director of the Office of Science and Technology Policy. He has in the past advocated for forced abortions and the use of sterilizing agents in drinking water in order to control America’s population. He believes that a baby may only ultimately become a human being if given the proper resources during the early years after birth. He is also a ridgid advocate of Global Warming who has dismissed Climategate out of hand as meaningless.

David Ogden - appointed by Obama to the post of Deputy Attorney General. He has in the past taken positions supporting abortion on demand, child pornography, and come out in opposition to parental notification laws on abortion.

Leon Panetta - this appointment was a purely political appointment to head our nation's major intelligence agency in time of war. Panetta had zero experience in intelligence. It is impossible to know how bad a job he has done since virtually all that the CIA does is shrouded in secrecy. Whatever may be the case, the appointment of a neophyte to this agency during two wars and an omnipresent terrorist threat was radical indeed. It marked Obama as elevating politics over national security.

Dawn Johnsen - Obama nominated her for, but has yet to appoint her to, the position of heading the Office of Legal Council. That is a critical a position that requires the occupant to, among other things, provide opinions of legality of proposed operations by the CIA. She is a doctranaire leftist idealogue whose previously articulated positions would virtually tie the hands of our government in dealing with terrorists.

Melody Barnes - appointed by Obama to the Head of Domestic Policy Council. She is a radical, progressive femenist who supports unrestricted access to taxpayer-funded abortion-on-demand. She also see capitalism as a "flawed economic philosophy."

Harold Koh - a lawyer who adheres to the radical position that international law should play a central role in interpreting our Constitution, essentially rendering the terms of our Constition meaningless and amenable to any personal policy preferences of five justices on the Supreme Court. It would substitute the policy preferences of unelected justices for the legislature. Moreover, Koh has led an attack on the first amendment right to free speech, finding it too liberal and advocating that court's interpret it more restrictively. And he has advocated allowing for use of Sharia law to be applied in appropriate cases in U.S. courts.

Van Jones - formerly appointed by Obama as the Special Advisor of Green Jobs to the White House, Jones was a self-described communist and a 9-11 truther.

Mark Lloyd - Obama's appointment to Diversity Officer for the FCC. Lloyd is sort of the Rev. Wright of the FCC. He would subordinate concerns with "freedom of speech and the press" to racial and other policies. His biggest concern as diversity officer is getting rid of whites. "We have to be conscious of the need to put more people of color, gays, and other people in the positions of power that white people currently hold. We're in a position where you have to say who is going to step down so someone else can have power." He is, not surprisingly, a big supporter of the Fairness Doctrine as a means of silencing conservative opinion.

Chai Feldblum - appointed by Obama as Commissioner of the Equal Employment Opportunity Commission. Feldblum is a radical advocate of gay lesbian transgender rights in America and does not advocate merely equality for the LGBT community, but would seemingly support advocating for an LBGT lifestyle as the new norm in American society. Indeed, Feldblum would evlevate LGBT rights above the conscious of Christians and others who do not wish to accept the LGBT lifestyle on religious grounds. Some of his recent comments on this topic: “[F]or all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried straight couples and all gay couples, this is a point where I believe the “zero sum” nature of the game inevitably comes into play. . . . Government should “not tolerate private beliefs about sexual orientation and gender identity that adversely affect LGBT people. . . . “[I]t is essential that we not privilege moral beliefs that are religiously based over other sincerely held core, moral beliefs” about homosexuality."

I could go on and on, but am tired of writing and linking at this point. There are many other radical "progressives" Obama has appointed to positions of power. And indeed, they will clearly effect our nation in fundamental ways. The job of the next President will not be merely to roll back all the damaging legislation put in place by Obama and Crazy Nancy, but to undo the destructive influence of the radical progressives Obama has put in positions of power virtually throughout the government.

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