WASHINGTON Early in an opinion issued recently by a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, Judge A. Raymond Randolph says: "Although the parties have not raised it, one issue needs to be resolved before we turn to the merits of the case."
The issue he raised but could not resolve that is up to the Supreme Court illuminates the Obama administration's George Wallace-like lawlessness. It also demonstrates the judiciary's duty to restrain presidents who forget the oath they swear to "preserve, protect and defend the Constitution."
The appeals court was deciding whether the National Labor Relations Board has the power to issue the rule requiring nearly 6 million private-sector employers to post notices informing workers of their right to join a union. Failure to post the notice would be, the NLRB says, an "unfair labor practice," equivalent to interfering with, restraining or coercing employees.
The regulation of speech about unionization has been tightly restricted for many decades.
In 1947, Congress amended the National Labor Relations Act with this: "The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [act], if such expression contains no threat of reprisal or force or promise of benefit." The Supreme Court had already held that employers have First Amendment free-speech rights to engage in non-coercive speech about unionization.
In the recent case, the NLRB argued that the required posting is its own speech, not the speech of any employer. The appeals court disagreed, and cited some "firmly established principles" of free-speech law, including "the right to decide not to disseminate" the speech of others.
The Supreme Court has hitherto held that it is unconstitutional to force students to salute the flag. And the court has said "freedom of speech prohibits the government from telling people what they must say." Otherwise the First Amendment, "which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind."
Just because the NLRB wrote the required posting does not make it merely "government speech" rather than the coerced speech of employers who are compelled to disseminate it on their premises.
So the NLRB's rule requiring the posting was illegitimate. But, then, everything the NLRB, as currently constituted, does is illegitimate because two of its members were put in their seats by an unconstitutional act by President Obama.
What Randolph referred to early in the opinion is this: The NLRB has five seats and can act with a quorum of three members. But it does not have three. Seventeen months after the NLRB issued its rule requiring employers to post the notice, the appeals court held that the Senate was not in recess when Obama made three supposed recess appointments to the board.
The Constitution says: "The president shall have power to fill up all vacancies that may happen during the recess of the Senate." The Constitution also says the Senate has the power to reject presidential appointments and to "determine the rules of its proceedings."
The Senate, however, said it was not in recess when Obama said it was. So the D.C. court said those three appointees were not rightfully in office.
The NLRB said it "respectfully" disagreed with the court, and went its merry way, without a quorum. Absent the perfunctory expression of respect, this was pretty much what George Wallace did 50 years ago this year when he stood in the door of Foster Auditorium at the University of Alabama to prevent two young blacks from registering as students.
Wallace said the district judge who had ordered the admission of the students was entitled to his opinion but that he, Wallace, had a different opinion, so there.
Which is essentially what the NLRB said when the D.C. court said the board lacked a quorum to act. The NLRB went on issuing edicts, legitimacy be damned.
Courts defeated Wallace's lawlessness. Presumably the Supreme Court will defeat Obama's by telling the NLRB that the D.C. court was right about recess appointments.
By such judicial vigilance against the excesses of elected officials, democracy is disciplined and progressivism's agenda unchecked executive power is understood to be unconstitutional.