Rule of law and all that....
Last week, the DC Circuit ruling that the recess appointments of three members of the National Labor Relations Board were unconstitutional, meaning that the NLRB lacked a quota and its rulings were unlawful.
The ruling seemed a sure thing to me. (1) The Constitutional clause allowing recess appointments (Art. II, sec. 2) reads: "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." The NLRB vacancies had occurred while the Senate was in session. Second, the clause distinguishes between "recess" and "session," suggesting that "recess" doesn't mean a temporary gap in proceedings, but the period after adjournment.
The NLRB, in short, lost for two very good reasons. Its response, however, is:
"The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case....
In the meantime, the Board has important work to do."
In other words, giving the DC Circuit the one-fingered salute and announcing they are going to keep on business as usual anyway. Well, there's always time for a suit for an injunction, brought by some appropriate membership organization claiming standing on behalf of its members....
Wouldn't this mean that all past decisions made along with those made in the future by these people would also be invalid?
Posted by: Dave in Colo at January 28, 2013 08:47 AM
The problem with how the clause is read is caused by the lack of the teaching of proper English grammar and sentence structure. For those of us with extensive education in the grammar of English and multiple foreign languages, the clause reads as the Framers intended, that the President may temporarily appoint someone WHEN the vacancy happens during the recess. In the discussion as VOLOKH.COM, some folks just couldn't come to grasps over the language. IF the clause meant ANY vacancy, there are required punctuation marks the the Committee on Style would NEVER have missed. Only the ignorance of people today OR a desire to bypass the Constitution results in such screwed up readings.
Posted by: fwb at January 28, 2013 01:30 PM
One should diagram the sentence as some of us were taught to do in the 1950s and 1960s. Diagramming a sentence aids in understanding common grammar and the rules for writing.
Posted by: fwb at January 28, 2013 01:32 PM
Boeing should ignore the "agreement" they were forced to make with the NLRB concerning that factory they wanted to build. If the NLRB attempts to take them to court, they can simply move for dismissal.
Posted by: Jim at January 28, 2013 05:06 PM