The NLRB Decision and the Step to Tyranny That Was Thwarted

There has been some talk about the big NLRB decision that came down last week, but too much of the coverage got lost in the minutae of the ruling.  Too many thought the issue was about the technicalities of when the Senate was in recess.

No, it is not.  It was about safeguarding a major constitutional protection against tyranny.

Let’s start with the text of the Constitution itself.  It starts with the appointments clause, which states that the President

shall nominate, and by and with the Advice and Consent of the Senate, shall 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[.]

There’s another clause allowing for “inferior Officers” to be appointed by the President or people in the executive or judicial branch.  Which is why if you want to be a receptionist in a courthouse, you don’t have to be confirmed by the Senate.  But still for the upper eschelon of public officials, Supreme Court Justices, and so on, this is the general rule.  If you want the job, you have to be nominated by the President and Confirmed by the Senate.

But there is also an exception:

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.

So let us turn to the facts of the case.  The National Labor Relation Board was having trouble getting its business done because it lacked a quorum for much of its business due to vacancies.  The Senate decided to take a break, but kept the session officially open by a pro forma trick.  Here’s how the D.C. Circuit court described it:

At the time of the President’s purported recess appointments of the three Board members, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.... The agreement stated that “no business [would be] conducted” during those sessions.

And of course the agreement not to do business was actually broken several times:

During the December 23 pro forma session, the Senate overrode its prior agreement by unanimous consent and passed a temporary extension to the payroll tax....  During the January 3 pro forma session, the Senate acted to convene the second session of the 112th Congress and to fulfill its constitutional duty to meet on January 3.

So in fact the Senate could come back and do work at any time if it was important enough, but for the most part it was Christmas break.

(By the way, wouldn’t you like to skip work a month every year around Chrismas?  To borrow from Mel Brooks: “It’s good to be a Senator.”)

(This is how Ted Kennedy actually went through his day in the Senate.)

So the President decided that they were in recess and made recess appointments to the NLRB.  That meant that they got to serve as long as the Senate was in session, which would be two years later.  That is, the appointments were made in January 2011, and would end at the end of 2013.  But one intrepid company which was on the reciving end of a negative decision of the NLRB decided to take issue with that.  They said that the Senate was not actually in recess at the time, and that therefore the appointments were unlawful and since the negative decision couldn’t have been made without those appointments, that decision itself is unlawful.  And late last week, a panel of the D.C. Circuit Court of Appeals agreed.

But what is really troubling is the arguments advanced by the President to justify this decision.  First we get the idea that it is up to the President to determine when and if the Senate is in recess.  From the opinion:

The fourth and final possible interpretation of “the Recess,” advocated by the Office of Legal Counsel, is a variation of the functional interpretation in which the President has discretion to determine that the Senate is in recess. See 2012 OLC Memo, supra, at 23 (“[T]he President therefore has discretion to conclude that the Senate is unavailable to perform its adviseand- consent function and to exercise his power to make recess appointments.”).

The second argument was about the word, “happens” in the recess apointments clause.  To review, it says that the President can fill “Vacancies that may happen during the Recess of the Senate” (emphasis added).  The Circuit Court captures the two positions well:

The company contends that “happen” means “arise” or “begin” or “come into being.” The Board, on the other hand, contends that the President may fill up any vacancies that “happen to exist” during “the Recess.”

Now, all that may sound esoteric, but if either of those arguments were accepted, this would be a revolution in our Constitution and a dangerous step toward tyranny.  For instance, imagine that the President wishes to appoint a certain person to the NLRB that the Senate considers unacceptable, for any reason.  If the President was allowed to decide for himself when the Senate was in recess, then the President could simply declare the Senate to be in recess and appoint his unacceptable candidate without the advice and consent of the Senate.  Which raises the question: why wouldn’t the President just do that in all cases?  Why would the President ever bother to get someone confirmed in any role covered by the appointments clause, if he can just call it a recess appointment?

Indeed, the recess appointment clause applies even to Federal Judges.  So suppose the President wanted to appoint an unacceptable justice to the Supreme Court?  Well, just declare the Senate to be in recess and you get to appoint one for up to two years.  Now unlike the nine presently on the bench, such an appointment would not be for life, but only for up to two years, which is both good and bad from a President’s perspective.  On one hand, because of a judge holds a lifetime appointment, the judiciary becomes one of the lasting influences the President can have.  I mean Ronald Reagan hasn’t been President for over twenty years and indeed is no longer on this Earth, but two of his justices still sit on the Supreme Court (and even more in lower courts).  Similar things can be said of Bill Clinton and both Presidents Bush.

But the purpose of giving Article III judges (including the Justices of the Supreme Court) lifetime appointments is to insulate them from others’ influence and if a tradition begins of the President abusing he recess appointment clause, those judges would know that their term would expire within two years, so if they want to keep their jobs, they better rule the way the President wants them to.

And here’s the other thing.  If the President is the one to make this determination of when the Senate is in recess, then it means that no one else has the power to contradict him.  So even if it was plain as day that on a specific date the Senate was in session and even doing business, the President could still determine it is in recess under this radical approach and make recess appointments.

And as for the argument over what the word “happens” means, if the word “happen” is read to mean like the term “arises,” then it means that only when the vacancy opens up during a recess could a recess appointment be made.  But the President wanted the court to say that if the spot was already vacant when the recess began (however you define recess) then the President could fill those positions with recess appointments.  So again, the President could desire an unacceptable candidate for the NLRB—or the Supreme Court, for that matter—and simply stall until the next recess comes around and the appoint that person without worrying about the advice and consent of the Senate.

Bear in mind folks, this recess appointments clause was meant to be an exception to the rule.  Most appontments were supposed to be made with the advice and consent of the Senate and the recess appointments clause was only meant as an emergency exception.  And yet Obama, through his minions, was trying to use the exception to eviscerate the rule.

The irony of it all is that the recess appointments clause is made almost wholly obsolete by technology.  So all those liberals—including Obama—who mock the Second Amendment as a relic of the past that has become obselite because of modern technology are clamoring to defend Obama’s abuse of another clause that truly is obselite.  Back when the recess clause was written, travel around this country was difficult.  Back then, Congress couldn’t have gotten together at the drop of a dime.  Today, you can hop on a plane and be there within a day.  Indeed, we could probably work out some kind of “telecommuting” option that allows Senators to vote while sitting on a beach somewhere.  So back then it made sense to have this kind of exception, so the government could continue to function until the Senators made it back to Washington.  But today it does not.  But do you catch liberals like Obama saying it should be rendered inoperative because of changes in technology?  Hell no!  Instead we see Obama advocating that this obsolete exception swallow the non-obselete rule, backed up by the usual chorus of liberal institutions.

Which is not to say that I think that this obsolete recess appointments clause should be ignored.  The correct way to deal with an outdated clause of the Constitution is amendment.  But I also don’t think it should be given an unnatural interpretation that eviscerates the main rule either.

Now does this mean that I am saying Obama is a wannabe tyrant for attempting to take us one step closer to tyranny?  Not necessarily.  The explanation in actuality could be as simple as that Obama wanted the NLRB to get its work done and just got frustrated with the delays.  What wise people have to understand is that the siren song of tyranny is often convenience.  Our checks and balances are an enormous pain in the keister.  It is deliberately so, but it creates the temptation in people of good faith to just take a shortcut.  It whispers things like, “Hey, let’s just appoint them as recess appointments and let them get back to work... what’s the harm?”  And even if every single appointment Obama made under this approach was a good person who served the public well, a precedent allowing the President to decide when the Senate was in recess would lie about “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”  And in the wrong hands this newly minted authority can be used to further undermine our Constitution.  So you don’t have to believe that Obama is a tyrant-in-waiting to believe that his actions, if accepted by the Courts, would pave the road for tyranny.

For me the Second Amendment is justified as a defense of tyranny with this simple syllogism:

1) The Founders correctly believed we have a God-given right to rebell against tyranny should it arise,

2) The Founders correctly feared that it could arise here in America, in our Federal Government,

3) A rebellion without guns is unlikely to stand a chance,

4) Therefore the Founders granted us the right to bear arms, in order to allow us to exercise their God-given right of rebellion.

And of course I am distinguishing between legal rights and God-given rights.  We don’t have a legal right to rebell.  It is right to assume that no government has ever legalized its own destruction and certainly the Federal Government hasn’t done so.  Instead the right is God-given and if its exercise is attempted, it will result in victory or imprisonment and execution.

One of the ways to attack that syllogism is to claim that tyranny could never happen here.  But in the NRLB decision, we see advocates for creeping tyranny right in the midst of our Federal Government, proof that if we are not careful, tyranny can indeed happen here.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.