January 25, 2013

It was a bad day for the lefties afflicted with the totalitarian temptation. (Relax: It is a term of art, a well-known one, and I am not calling Democrats totalitarians.) Two significant developments point to the importance for conservatives — who worry about unlimited, intrusive, abusive government and the squelching of political minority rights — of the rule of law and constitutional structure in preserving liberty.

Sen. Mitch McConnell
Sen. Mitch McConnell (Andrew Harrer / Bloomberg)

First we have a devastating blow delivered to the administration by the federal appeals court over the president’s power grab on appointments, as the Associated Press reports:

President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel, a federal appeals court panel ruled Friday.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board.

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.

John Eastman, a professor at Chapman University School of Law, explained via e-mail, “The D.C. Circuit today has forcefully reiterated the importance of separation of powers to our constitutional system of government.  . . . The President should have known that his ‘recess appointments,’ made when the Senate was not in recess, flouted this core constitutional check on the President’s powers. Now, his administration will have to clean up the mess he created, with over a year’s worth of decisions by the NLRB now illegal because issued by an illegally constituted board.”

James Sherk of the Heritage Foundation is compiling a list of those cases likely to be invalidated:

a) The NLRB’s “ambush election” proposal that would shorten the timeframe for union elections to less than three weeks and limit the ability of employers’ lawyers to challenge NLRB  decisions about who votes in the election;

b) Forcing employers in all industries . . . to bargain with “micro-unions” that represent narrow groups of workers within a company (even workers of a single job title);

c) Limiting employees’ rights to not fund political activities by preventing workers from viewing auditors reports of union spending and by classifying lobbying expenses as “representational activities”’;

d) Preventing employers from ending payroll dues deductions when a collective bargaining agreement expires;

e) Restricting employers ability to limit off-duty access to a workplace in order – thus expanding access for union organizers;

f) Narrowing the definition of supervisors (who cannot be unionized) to expand the number of employees unions can organize;

g) Expanding the definition of “concerted activity” to include public complaints about an employer or boss in social media;

h) Asserting NLRB jurisdiction over public charter schools;

i) Requiring employers to give unions copies of sworn witness statements in investigations into workplace misconduct, chilling the ability of employees to speak freely without fear of repercussions.

A year ago (and two days after the unconstitutional appointments were made), The Post ran an op-ed from former attorney general Ed Meese and Todd Gaziano that explained the argument for overturning the power grab:

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days. The president and anyone else may object that the Senate is conducting ‘pro forma’ sessions, but that does not render them constitutionally meaningless, as some have argued.”

Prophetically they asserted: “President Obama’s flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency. There eventually may be litigation over the illegal appointments, but it will be a failure of government if the political branches do not resolve this injustice before a court rules.” Indeed, the courts were forced to take matters into their own hands to enforce the Constitution.

Although he often talks as if Congress is an inconvenient distraction, the president has been reminded that he does not reign supreme and must actually share power with the legislature. The decision throws into doubt the validity of a slew of egregiously pro-union decisions by the board.

Meanwhile, liberals intent on wiping out the power of Senate Republicans to slow down, amend or tie up Democratic legislation are unhinged today in the wake of Senate Majority Leader Harry Reid’s decision to punt on filibuster “reform.” All of this seemed only to sow dissension in Democratic ranks. The Huffington Post reported:

At Tuesday’s closed-door caucus meeting, [Sen. Jeff Merkley (D-Ore.)] was upbraided by Reid for breaking unspoken Senate rules and naming specific senators in a conference call with Democratic activists last week, according to sources familiar with the exchange. “He’s pissed off so many in the caucus,” said one Democratic aide piqued at Merkley. “He has been having conference calls with progressive donors and activists trying to get them energized. He’s named specific Dem senators. Many are furious.

Yikes. Imagine the scene when Reid gives up on most of gun control.

These two incidents remind conservatives that unbridled power in the majority and/or in the executive are to be resisted and that it is not merely the articulated protections in the Bill of Rights and elsewhere that protect us from oppression but the structure of our government, the division of power and the checks and balances spelled but in the Constitution. The failure to get what you want with agreement from no one else should not become the definition of “dysfunction.” Dysfunction, rather, is the attempt to aggrandize power irrespective of minority rights and constitutional requirements.

UPDATE (2:13 p.m.): Consider the utter chaos caused by Obama’s power grab. In all likelihood, the rulings in the cases above will be voided. What happens to the employee who paid money into a union as a result of one of those cases? An employer who had to pay higher wages or pay money into a union pension plan? What if an employer had to shut down because of a union contract that he never should have been forced to sign? The myriad of complications and the economic and personal dislocation could be tremendous.

This, by the way, is the very reason why the rule of law is so valuable — it provides clarity, dependability and finality. But not in the Obama era.