Marathon Pundit: NLRB overreach: Not in recess edition

Yesterday President Obama pushed through four recess appointments, including three to the radicalized National Labor Relations Board, even thought the Senate isn't in recess.

Today's word for today is "imperious."

From the Wall Street Journal:

Remember those terrible days of the Imperial Presidency, when George W. Bush made several "recess appointments" to overcome Senate opposition? Well, Czar George II never did attempt what President Obama did yesterday in making recess appointments when Congress isn't even on recess.

Eager to pick a fight with Congress as part of his re-election campaign, Mr. Obama did the Constitutional equivalent of sticking a thumb in its eye and hitting below the belt. He installed Richard Cordray as the first chief of the Consumer Financial Protection Bureau and named three new members to the National Labor Relations Board. He did so even though the Senate was in pro forma session after the new Congress convened this week.

A President has the power to make a recess appointment, and we've supported Mr. Obama's right to do so. The Constitutional catch is that Congress must be in recess.

The last clause of Section 5 of Article 1 of the Constitution says that "Neither House" of Congress can adjourn for more than three days "without the Consent of the other" house. In this case, the House of Representatives had not formally consented to Senate adjournment. It's true the House did this to block the President from making recess appointments, but it is following the Constitution in doing so. Let's hear Mr. Obama's legal justification.

Newt Gringich has a solution--defund the NLRB. From Newt.org:

The answer to an imperial president is a Congress which stands on its own rights. And the correct response to what the president just did would be for the Congress to zero out and refuse to fund the National Labor Relations Board.

The National Labor Relations Board now has a majority of members who were never confirmed by the U.S. Senate. This is a clear violation of the spirit of the law, and Congress has an obligation to defend our rights, and the correct way is the power of the purse.

NetRightDaily:

On Jan. 4, Barack Obama made four recess appointments: Richard Cordray to the Consumer Financial Protection Bureau and Sharon Block, Terence Flynn, and Richard Griffin to the National Labor Relations Board (NLRB).

In itself, that's not unusual. Recess appointments happen all the time in presidential administrations. What was out of the ordinary was that Congress was not actually in a recess. Instead, Obama has unconstitutionally pretended a recess into existence to make the appointments, something that has never been attempted before by any president — and now he borders on being a tyrant.

As a result, these appointments, and all the acts they may take while in their posts, are not worth the paper they are printed on. And whatever political party one supports, this is not a precedent that should be accepted lightly.

If unchallenged in court, this practice — making a recess appointment while Congress is indisputably in a pro forma session — will become commonplace for Republican presidents as well as Democrats.

Americans for Limited Government:

Jan. 5, 2012, Fairfax, VA—Americans for Limited Government (ALG) today released a report on the two Democrat "recess" appointees to the National Labor Relations Board (NLRB) Richard Griffin and Sharon Block that were installed by Barack Obama when Congress was not even on a recess.

"The NLRB is now a rogue agency, and every act it undertakes this year will become challengeable in federal court as to whether valid appointments were ever made," ALG President Bill Wilson said.

The report details the experiences of the two nominees, Griffin and Block, who Wilson said Obama has risked a constitutional crisis over.

"Block once argued on behalf of the NLRB's decision to award back pay to an illegal immigrant, an argument that was eventually rejected by the Supreme Court. And Griffin comes from the corruption-prone International Union of Operating Engineers that fought against open and fair union elections," Wilson said.

"These nominees were only submitted to the Senate by Obama on December 15," ALG President Bill Wilson noted. "There has not even been time to hold a hearing in the Senate, let alone vote on them, and yet Obama wants to claim his extraconstitutional 'recess' appointments were based on some sort of extraordinary delay."

Industry groups affected by NLRB regulations are expected to sue in federal court to overturn the appointments and any new regulations the Board issues.

"Obama and Reid have thrown out the 'advice and consent' clause of the Constitution so that union organizers can hang posters on their boss' door during a union election," Wilson joked, concluding, "And to what end? When all is said and done, the courts will nullify these appointments and their acts, meanwhile Obama will be remembered as the recess president who accomplished nothing because he was too busy violating the Constitution."

Attachments:

"ALG Nominee Alert, Richard Griffin and Sharon Block, National Labor Relations Board," Americans for Limited Government Research Foundation, Dec. 2011 at http://www.getliberty.org/files/Sharon Block Richard Griffin NomineeAlert HighRes 12 30.pdf.

"Obama's Radical Non-Recess 'Recess' Appointments," ALG President Bill Wilson, Jan. 5, 2012 at http://netrightdaily.com/2012/01/obama%e2%80%99s-radical-non-recess-%e2%80%98recess%e2%80%99-appointments/.

"Cartoon: Obama's New Year's Resolution," William Warren, Jan. 5, 2012 at http://netrightdaily.com/2012/01/obamas-new-years-resolution/.

John Yoo in National Review Online:

But President Obama is making a far more sweeping claim. Here, as I understand it, the Senate is not officially in adjournment (they have held "pro forma" meetings, where little to no business occurs, to prevent Obama from making exactly such appointments). So there is no question whether the adjournment has become a constitutional "recess." Rather, Obama is claiming the right to decide whether a session of Congress is in fact a "real" one based, I suppose, on whether he sees any business going on.

This, in my view, is not up to the president, but the Senate. It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having senators sitting around on the floor reading the papers. The president cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.

Is the president going to have the authority to decide if the Supreme Court has deliberated too little on a case? Does Congress have the right to decide whether the president has really thought hard enough about granting a pardon? Under Obama's approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the senators are not working as hard as he did in the Senate (a fairly low bar).

Even with my broad view of executive power, I've always thought that each branch has control over its own functions and has the right — if not the duty — to exclude the others as best it can from its own decisions. The Senate can make sure that its rights are respected by refusing to provide any support or legislation to the agency, conducting tough oversight hearings, and enacting repealing legislation at every opportunity. It can also use non-formal means such as hearings, appointments, and funding of related agencies to impose a high cost for Obama's act.

From AP:

Republican presidential candidate Mitt Romney is bashing the National Labor Relations Board in a new ad airing in South Carolina the day after the Obama administration circumvented Congress and put three new people on the labor panel.

The White House offered a sharp retort casting Romney as an opponent of protections for workers.

In the ad, Romney accuses President Barack Obama of adopting policies that "affect our economy based not upon what's right for the American worker but, instead, what's right for their politics." He also contends that the board is stacked with "union stooges."

Obama on Wednesday took advantage of the Senate being in recess to appoint three new labor panel members. Openly defying Senate Republicans, Obama also appointed Richard Cordray, a former Ohio attorney general, to head a new Consumer Financial Protection Board. All the appointments bypassed the Senate confirmation process.