Bench Memos

Re: Third Circuit Ruling Against Presidential Recess-Appointment Authority

The Wall Street Journal has a great summary of the Third Circuit’s opinion invalidating one of President Obama’s NLRB recess appointments:

In a 2-1 decision, Judge D. Brooks Smith ruled in National Labor Relations Board v. New Vista Nursing and Rehabilitation that Mr. Obama’s recess appointment of Craig Becker in March 2010 was illegal because the Senate was not between sessions. To allow such appointees, Judge Smith wrote, “would eviscerate the divided-powers framework the two Appointments Clauses establish.

“If the Senate refused to confirm a president’s nominees, then the president could circumvent the Senate’s constitutional role simply by waiting until senators go home for the evening. The exception of the Recess Appointments Clause would swallow the rule of the Appointments Clause.”

The decision is significant because the Third Circuit panel adopted the reasoning of the D.C. Circuit in January’s Noel Canning decision. But the implications go further. Mr. Becker’s term began earlier than the other recess appointees, thus invalidating hundreds of other decisions that the labor board made without a legal quorum. The number of NLRB decisions jeopardized by the three illegal recess appointments now stand at some 1,200. Yet the Obama NLRB keeps issuing rulings as if it operates in its own legal universe.

Notably, the president’s recess-appointment power, as interpreted by the D.C. Circuit and the Third Circuit’s, is significantly narrower than the power exercised by President Obama’s January 2012 non-recess appointments. Accordingly, even the most modest interpretation of this power by the Supreme Court will likely yield a defeat for Obama. Keep that in mind if the Court invalidates the president’s January non-recess appointments and the Left somehow blames Republicans – it was President Obama’s appointments that, as the D.C. Circuit put it, “eviscerate[d] the Constitution’s separation of powers.”

Most Popular

White House

Another Warning Sign

The Mueller report is of course about Russian interference in the 2016 election and about the White House's interference in the resulting investigation. But I couldn’t help also reading the report as a window into the manner of administration that characterizes the Trump era, and therefore as another warning ... Read More
World

What’s So Great about Western Civilization

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Redacted: Harm to Ongoing Matter), One of the things I tell new parents is something that was told to me when my daughter still had that ... Read More
Film & TV

Jesus Is Not the Joker

Actors love to think they can play anything, but the job of any half-decent filmmaker is to tell them when they’re not right for a part. If the Rock wants to play Kurt Cobain, try to talk him out of it. Adam Sandler as King Lear is not a great match. And then there’s Joaquin Phoenix. He’s playing Jesus ... Read More
White House

The Mueller Report Should Shock Our Conscience

I've finished reading the entire Mueller report, and I must confess that even as a longtime, quite open critic of Donald Trump, I was surprised at the sheer scope, scale, and brazenness of the lies, falsehoods, and misdirections detailed by the Special Counsel's Office. We've become accustomed to Trump making up ... Read More
U.S.

Supreme Court Mulls Citizenship Question for Census

Washington -- The oral arguments the Supreme Court will hear on Tuesday will be more decorous than the gusts of judicial testiness that blew the case up to the nation’s highest tribunal. The case, which raises arcane questions of administrative law but could have widely radiating political and policy ... Read More