EDITORIAL: The Walking Dead

If it’s true that art imitates life (and sometimes it seems so), the National Labor Relations Board has become the bureaucratic equivalent of the television hit “The Walking Dead.”

“This zombie labor board has been operating for two months,” Fred Wszolek, a spokesman for the Workforce Fairness Institute, says of the panel, three of whose members were put on the board by recess appointments in January 2012. These appointments were struck down on Jan. 25 as unconstitutional by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit.

On Tuesday, the Obama administration said it would appeal to the Supreme Court. The board continues to conduct official business in in-your-face disregard of the ruling by the Court of Appeals. The validity of the decisions the board made before the court’s ruling, and of any decisions it renders while the appeal to the Supreme Court is pending, rests under a cloud.

President Obama on his own declared the Senate to be in recess just after the first of last year so he could bypass the constitutional requirement that the Senate advise and consent to such appointments. He named commissioners with strong and intimate ties to labor unions, knowing they were unlikely to be confirmed by the Senate.

“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” Chief Judge David B. Sentelle wrote in the court’s unanimous ruling invalidating the appointments, which Senate Minority Leader Mitch McConnell, Kentucky Republican, had described as “an unprecedented power grab.”

Mr. Obama’s ends-justifies-the-means appointments were made even as Senate Republicans were conducting pro forma sessions for the express purpose of preventing him from making recess appointments. The case, Noel Canning v. NLRB, involves a Pepsi-Cola bottling company that objected to a decision issued by the labor board. If upheld on appeal, all of the decisions made over the past 14 months would necessarily be voided and would have to be revisited by a reconstituted panel made up of appointees actually confirmed by the Senate.

In the meantime, businesses and unions alike face costs and uncertainty that could have been avoided if Mr. Obama had followed proper appointment procedures. In the interest of lifting the cloud of uncertainty, the president ought to send the Senate three replacement nominees not beholden to the unions. The five-member NLRB is meant to be a neutral arbiter to balance the rights of companies and of unions.

The administration has dug in, and Mr. Obama stands by the appointments, fraudulent as they may be. It’s up to the Supreme Court to quickly drive a stake through the head of the zombie board, which it can do merely by refusing to take the appeal.

The Washington Times

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