Obama’s extraconstitutional NLRB appointments

Washington, D.C., political insiders, wonks and talk radio are all atwitter about the decision by President Obama to blow up the Senate advise-and-consent process by making appointments of three individuals to the National Labor Relations Board and one to run the Consumer Financial Protection Bureau.

The three NLRB appointees will allow the board to continue on with a quorum making broad sweeping regulatory rulings that threaten to transform employment law by executive fiat during this last year of the Obama administration.

The illegitimacy of the NLRB quorum will guarantee that every decision they make will end up in federal court on appeal, which is where these decisions should be made in the first place.

This glimmer of good news out of the Obama-created constitutional crisis reinforces the need for Congress to codify it into law by passing legislation by Rep. Austin Scott (R-Ga.) that would take away the NLRB’s adjudicatory authority no matter who sits on the board.

The Scott bill would take the NLRB middleman out of the legal process, allowing the board to issue advisory opinions like the EEOC does, but those opinions would carry no legal weight.

Allowing employment-law disputes to head directly to the federal judiciary will cut out the politically motivated appointees who apparently don’t even need to have Senate consent from making law.

If Congress wants to do something to protect its constitutional prerogatives beyond filing a lawsuit, it should take up Scott’s Protecting American Jobs Act — H.R.2978 — and forever remove the temptation to stack this formerly independent board to benefit a political constituency heading into an election.

The mess that is going to be created when all of the rulings by this new board are overturned because they lacked a quorum under the Supreme Court’s New Process Steel v. NLRB decision can be avoided by passing this common-sense proposal.

Congress needs to go Nike on this one, and Just Do It.


Rick Manning is the communications director of Americans for Limited Government and a former public affairs chief of staff at the U.S. Department of Labor.