The consequences of unconstitutionality

Eyeglasses with newspaper and coffee cup

Last week, the D.C. Circuit Court of Appeals ruled President Obama’s “recess” appointments to the National Labor Relations Board (NLRB) were unconstitutional. Mark Levin’s Landmark Legal Foundation successfully argued the appointments were not done during a congressional recess, which means the case may go to the Supreme Court.

What happens next is up in the air, but the Supreme Court’s decision could reverberate through the entire economy. Brad Plumer at the Washington Post Wonk Blog examined some potential results if the appointments are ruled unconstitutional:

If the ruling stands — and that’s still a question mark — it would mean two big things for the five-member labor board. First, the NLRB would have just one valid appointee left, which would prevent it from deciding any further labor cases. (At least three sitting members are needed for a quorum, though the board could still hold union elections and investigate unfair practices.)

Second, and just as significantly, hundreds of NLRB decisions that have been handed down since January 4, 2012 would suddenly become invalid. That includes rulings on everything from how workers can use social media to regulations on union dues-checkoffs.

According to Plumer, the consequences of not having a quorum are numerous. Quoting a former NLRB Chairman, employers will have the power to ignore a decision by employees to form a union, employers will be able to interfere with union affairs, and “most companies will not voluntarily deal with a union.”

Plumer also outlines just a few of the decisions that would be overturned if the NLRB appointments were found to be unconstitutional. They include decisions related to social media, requirements for employers to give more information than they want to, and rules on employer requirements for the collection of union dues.

According to James Sherk, Senior Fellow in Labor Policy at The Heritage Foundation, in a statement to Tea Party Patriots, the results of a paralyzed Board would be mixed, though largely favorable to employees and employers alike:

The most important thing the Supreme Court would do if it overturned the President’s appointments is re-affirm the separation of powers. With the NLRB appointments the President acted by executive fiat instead of with the constitutionally required “advise and consent” of the Senate.

Overturning the appointments would paralyze the Board. This would prevent the Board from engaging in its routine duties. But      given the Board’s tendency shift from being a neutral arbitrator of workplace disputes to reinterpreting the law to benefit unions at the expense of both nonunion workers and employers (consider the lawsuit against Boeing for creating jobs in South Carolina instead of Washington State), a paralyzed Board is not the worst thing in the world. It would protect businesses and employees from activist decisions tilted to benefit unions.

Plumer closes by noting the NLRB would be very dysfunctional if the appointments were overturned and the Senate did not quickly approve new members, though this isn’t necessarily a bad thing. Dysfunction is far more preferable than smooth transitions between bad and/or unconstitutional policies.

When it comes to this potential Supreme Court case, or the still-pending Obamacare lawsuits wending their way through the court system, the consequences of overturning existing laws is the center of a great deal of attention. At the end of the day, however, the consequences of violating the Constitution are far worse, as we have seen in the last century of ever-greater violations of the natural rights of Americans protected by the Constitution. From the perspective of a Tea Party Patriot, the consequences of a fully-functioning National Labor Relations Board are far worse than a free markets dictated by supply-and-demand not political connections or preferences.