Just two items today. But I will have another union post shortly.
From the Wall Street Journal, paid registration required:
Where's John Yoo when President Obama needs him? The famous Bush Administration legal official was much maligned for issuing opinions supporting Presidential power, and he surely would have come up with something better than the junk law issued by the Justice Department's Office of Legal Counsel yesterday.RealClearMarkets:
The 23-page memorandum (dated January 6) by Assistant Attorney General Virginia Seitz is meant to justify Mr. Obama's recess appointments last week of Richard Cordray at the Consumer Financial Protection Bureau and three new members of the National Labor Relations Board—even though the Senate was not in recess but was holding pro forma sessions. The House also did not consent to the Senate's adjournment, as required by the Constitution's Article I, section 5, clause 4.
Ms. Seitz concedes that "The question is a novel one, and the substantial arguments on each side create some litigation risk for such appointments," and little wonder. Most of the opinion is an off-point digression on the constitutionality of recess appointments between Senate sessions, which no one disputes. But on that "novel" question, Ms. Seitz's legal reasoning is remarkably weak.
She avers that the pro forma sessions aren't technically sessions. As "a practical matter," she writes, in those sessions the Senate isn't capable of receiving and acting on nominations to the executive branch and therefore cannot exercise its advice and consent duties. Ms. Seitz points in particular to a Senate "standing order"—the rules of order it adopts to govern its procedures—that no business would be transacted during the pro forma sessions. If the Senate itself says it can't conduct business, she says, then the President can conclude it isn't really in session.
With the predictable expiry of the term of recess-appointed NLRB member Craig Becker in December, the Board lacked a quorum and was unable to conduct business. Which raises the question: Why didn't the president send the nominations of Ms. Block and Mr. Griffin in the summer or fall?Technorati tags:
The Republican appointee, Terence Flynn, was nominated in January 2011, and his paperwork is complete. If Mr. Flynn had been confirmed, the NLRB would have had a quorum. But that would have left the NLRB with two Republicans and one Democrat, a situation unthinkable to both Mr. Obama and the Democrat-controlled Senate.
Mr. Obama's NLRB "recess" appointments are a challenge to Congress and a payoff to his union supporters, who provide a major share of the contributions he needs for his presidential campaign. Among other actions, the NLRB has attacked Boeing for opening a new plant in South Carolina, a right-to-work state, and is requiring all employers to place oversize posters in workplaces to inform workers of their right to unionize (but not of their right to decertify a union).
Unions are already unhappy with the Obama White House because the Employee Free Choice Act, which would have taken away the right to a secret ballot in elections for union representation and imposed mandatory arbitration in contracts between unions and newly-unionized firms, failed to pass in a Democratic Congress in 2009-2010.
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