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How Obama’s “Recess” Appointments Helped Unions

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In Monday’s Noel Canning case, the Supreme Court considered whether the president can make recess appointments during Senate sessions. Few observers expect the Supreme Court to answer yes. Pundits have paid much less attention, however, to why he would want to stretch the constitutional limits on his authority: to unionize workers through regulation.

Private-sector union membership has fallen dramatically over the past generation. Unions represented almost a quarter of private-sector workers in the late 1970s. Today they represent just one in 15. This has happened because fewer workers today want to unionize. Polls show just a tenth of non-union workers would join a union. Unions have grown out of touch with modern workers’ needs.

Rather than accept this, or reform to become relevant, unions want the government to make it harder to decline their services. In 2009 they tried to pass the Orwellian “Employee Free Choice Act,” which would have eliminated secret-ballot elections in union organizing elections. Forcing workers to vote in front of union organizers would significantly bolster union ranks – but that was a bridge too far for even the Congress that passed Obamacare. Since then unions have turned to the National Labor Relations Board (NLRB) to boost their membership.

Senate filibusters prevented President Obama from appointing union activists to the NLRB. So unions urged the president to make recess appointments. Then, when the Supreme Court announced it would hear Noel Canning, Senate liberals forced through new NLRB nominees under threat of abolishing the filibuster (only to do so later nonetheless). Once on the board, Obama’s appointees drastically reinterpreted labor law. Among other changes they have:

These changes benefit unions institutionally at the expense of workers. They hardly justify ignoring constitutional limits on executive power or abolishing the filibuster.

— James Sherk is a senior policy analyst in labor economics at the Heritage Foundation. This piece originally appeared in National Review Online.

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