Obama NLRB Actions

Obama NLRB Actions "Unconstitutional"

Roger Pilon, a constitutional scholar from the CATO Institute, makes a compelling case that President Obama's outrageous appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau are unconstitutional: All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever. Yesterday, Professors John Yoo and Richard Epstein, writing separately, made it crystal clear that the president, under Article II, section 2, may make temporary recess appointments, but only when the Senate is in recess. Add in Article I, section 5, and it’s plain that the Senate is presently not in recess, just as it wasn’t under Senate Democrats when George W. Bush wanted to make recess appointments. The difference here is that Bush respected those constitutional provisions while Obama — never a constitutional law professor but only a part-time instructor – ignores them as politically inconvenient. Attempts by Obama’s apologists to say the Senate is not in session are pure sophistry and, in the case of Harry Reid, rank hypocrisy, as this morning’s Wall Street Journal brings out. But clear beyond the slightest doubt is the language of the statute (itself unconstitutional on any number of grounds not relevant here). As my colleague Mark Calabria wrote yesterday, “authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’”  A recess appointment, even if it were constitutional, is not a Senate confirmation. There is simply no wiggle room in that language that gives Cordray any authority, as litigation will soon make plain.

Obama NLRB Actions "Unconstitutional"

Obama NLRB Actions "Unconstitutional"

Roger Pilon, a constitutional scholar from the CATO Institute, makes a compelling case that President Obama's outrageous appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau are unconstitutional: All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever. Yesterday, Professors John Yoo and Richard Epstein, writing separately, made it crystal clear that the president, under Article II, section 2, may make temporary recess appointments, but only when the Senate is in recess. Add in Article I, section 5, and it’s plain that the Senate is presently not in recess, just as it wasn’t under Senate Democrats when George W. Bush wanted to make recess appointments. The difference here is that Bush respected those constitutional provisions while Obama — never a constitutional law professor but only a part-time instructor – ignores them as politically inconvenient. Attempts by Obama’s apologists to say the Senate is not in session are pure sophistry and, in the case of Harry Reid, rank hypocrisy, as this morning’s Wall Street Journal brings out. But clear beyond the slightest doubt is the language of the statute (itself unconstitutional on any number of grounds not relevant here). As my colleague Mark Calabria wrote yesterday, “authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’”  A recess appointment, even if it were constitutional, is not a Senate confirmation. There is simply no wiggle room in that language that gives Cordray any authority, as litigation will soon make plain.

Obama Reelection Gambit; Ignores Constitution & Gives Big Labor the NLRB

Obama Reelection Gambit; Ignores Constitution & Gives Big Labor the NLRB

Typically before a reelection, Presidents try to avoid creating constitutional battles. Not President Obama, he bypassed the Senate and appointed three NLRB board members.  Effectively, Obama handed the NLRB over to Big Labor Bosses, his biggest political spenders and political ground force, or “his army” as Teamster Boss Hoffa describes it. Election 2012 has already become ugly. This power grab by a desperate president gives Big Labor control over the NLRB, which was supposedly established to referee labor relations disputes.  Obama’s actions will make Big Labor the Harlem Trotters of labor disputes. Also, it will create a legal battle with Republicans in congress.  A battle the former constitutional law professor seems to seek. From the Hill: The recess appointments President Obama announced Wednesday are “almost certain” to be challenged in court … The recess appointments broke with legal precedent, as they while the Senate is holding regular pro forma sessions. Republicans insist the Senate has not been in recess thanks to the seconds-long sessions held every few days, but White House attorneys determined the procedural move is a gimmick that can be ignored by the president. House Speaker John Boehner (R-Ohio) blasted the move as an "unprecedented power grab" and said he expects "the courts will find the appointment to be illegitimate." The gambit puts the bureau in "uncertain legal territory," according to Senate Minority Leader Mitch McConnell (R-Ky.). From the Washington Times: Obama defies Congress with ‘recess’ picks; Nominations could provoke constitutional fight Pushing the limits of his recess appointment powers, President Obama on Wednesday bypassed the Senate to install three members of the National Labor Relations Board and a director for the controversial new Consumer Financial Protection Bureau - moves Republicans said amounted to unconstitutional power grabs Big Labor applauds, from In These Times: Obama Makes Recess Appointments to NLRB. Is It Enough for AFL-CIO Endorsement?