What if, in June, the five conservative Supreme Court justices strike down the Noel Channing National Labor Relations Board case against the Obama administration’s recess appointments? They might do so on the grounds that the original law that created the National Labor Relations Board in 1935 is unconstitutional. Let me give you some historic background and then explain the political and constitutional implications.
In the Jan. 20 “In Focus” column, I explained the Noel Channing case where a Washington corporation sued the Obama Administration over a NLRB decision against it. The grounds for the suit were that Obama had illegally appointed three NLRB board members during the winter 2011-12 recess. The Noel Channing Corporation is asserting that the NLRB decision against it is unconstitutional on the grounds that those three recess appointments were appointed illegally. Let me explain the implications.
Senate Republicans, anticipating that the president would make those appointments, passed a rule that the Senate would meet every three days in “pro-forma” sessions, thus the Senate was still technically in session and the appointments were illegal.
The implications of this case are as momentous as the Citizens’ United decision ruled on in January 2010. In the Citizens United ruling, the federal government’s control of campaign spending was ruled unconstitutional, thus opening the floodgates of spending by the wealthy on the 2012 presidential campaign.
I am guessing that the judicial arguments for striking down the Noel Channing case will go back to the 1935 ruling where a previous conservative Supreme Court was faced with the issue of whether the Roosevelt administration had the constitutional right to protect labor unions and control corporations with the Wagner Act.
The difference back then was that FDR had just tried to increase the number of justices on the Supreme Court from nine to 15 in what has become known as the Court Packing Case. He hoped to dilute the number of conservative judges on the Court with the appointment of six more FDR appointees. Roosevelt lost in his bid to increase the number, but in the process he intimidated the justices so much that several retired and others voted in FDR’s favor that he got his New Deal programs passed anyway.
The Supreme Court will announce its verdict for the Noel Channing case in June. What are the implications for the administration and the nation if the nation’s highest court rules to strike down this case on constitutional grounds?
First, Justice Roberts can avoid having to decide who is right in the fight between Senate Republicans and the president, thus removing his court from a very hot political issue.
Second, and far more importantly, Roberts and his conservative allies will have struck down part of the right of Congress to regulate business activities at all in labor disputes. In other words, the government will have to return to the economic doctrine of laissez faire in regard to regulating business – keep its hands off.
That will please the conservatives to the point that the whole New Deal with all of its regulatory programs will begin to unravel, one by one. Wall street corporations will grow even more powerful at the expense of Main Street.
Will it happen this way? I’m only speculating, but if one goes back to the direction of the Roberts’ Court after his first year, and you read Jeffrey Toobin’s “The Oath,” you will see that is the eventual direction the Roberts’ Court is heading.
It’s time to wake up and notice how corporations have been able to buy influence in Congress, in the presidency, and even in the courts to push their laissez faire agenda. If I’m wrong on the Noel Channing decision, then note how the case is decided, it may be more gradual and subtle than I surmised. What is important to note is that it is time for the American public to wake up to stop this alarming trend. As a Chinese proverb states: “Unless we change direction, we are likely to end up where we are headed.”