On Friday, a 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously declared President Obama’s “recess” appointments to the National Labor Relations Board (NLRB) to be unconstitutional. The judges rebuked Obama both because the Senate was actually in session when he made the appointments, and because two of the three positions in question became open months (in one case, more than a year) before the president implied an urgent need to fill them during a “recess.” The NLRB, however, is now ignoring the court’s decision — thereby suggesting its members don’t think they need to heed the legally binding judgments of the federal courts any more than the president who appointed them thinks he needs to seek the constitutionally required advice and consent of the Senate.
Rather brazenly, Mark Gaston Pearce — who was handpicked by Obama to chair the NLRB — released the following statement late on Friday:
“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld….
“In the meantime, the Board has important work to do….[W]e will continue to perform our statutory duties and issue decisions.”
Translation: Thanks for your opinion; we will now proceed as if it hadn’t been issued.
The Wall Street Journal editorial board writes in response:
“So, let's see. First, President Obama bypasses the Senate’s advice and consent power by making ‘recess’ appointments while the Senate was in pro-forma session specifically to prevent recess appointments. Then when a federal court rules the recess appointments illegal, the NLRB declares that it will keep doing business as if nothing happened.”
The Associated Press opined that the appellate judges’ ruling was “an embarrassing setback” for Obama. But, as the NLRB response (which certainly wasn’t issued without coordination with the White House) further demonstrates, Obama doesn’t embarrass easily.
In the seminal case of Marbury v. Madison, Chief Justice John Marshall wrote for a unanimous Supreme Court, “It is emphatically the province and duty of the Judicial Department to say what the law is.” Marshall and his fellow Founding-era justices, however, were writing from the standpoint of a belief in a fixed Constitution — one whose provisions could be amended by the people but whose meanings could not legitimately be changed by judges. As they said in that famous opinion, “The Government of the United States has been emphatically termed a government of laws, and not of men.” But the former constitutional law lecturer who currently resides in the White House has emphasized his adherence to the notion of a “living” Constitution — which amounts to a government of men, not of laws.
When Abraham Lincoln disagreed with the Court’s decision in Dred Scott v. Sandford — that tribunal’s watershed “living Constitution” decision (which prompted Justice Benjamin Curtis’s wonderful dissent) — that future president said the following:
“Judicial decisions have two uses — first, to absolutely determine the case decided; and secondly, to indicate to the public how other similar cases will be decided when they arise….
“[W]e [the members of the Republican party] think the Dred Scott decision is erroneous. We know the court that made it has often overruled its own decisions, and we shall do what we can to have it to overrule this. We offer no resistance to it.”
In other words: Work to change the ruling; don’t disobey it.
If only Obama were actually anything like Lincoln, rather than his opposite.