NLRB overreach: Recess myths and facts edition

It's time for myths to be dispelled and facts to be established. But first some NLRB overreach items.

First, from the Workforce Fairness Institute's blog:

Although President Obama attempted to mask his recent recess appointments to the National Labor Relations Board (NLRB) as something other than a giveaway to Big Labor with the simultaneous appointment of a permanent head for the Consumer Financial Protection Bureau (CFPB), nothing could be further from the truth. The recess appointments reflect not only a complete disregard for the Constitution, but also a total willingness to put aside two centuries of traditions and precedents vital to the functioning of our democracy. Perhaps more importantly, they're a hypocritical abuse of executive power almost identical to what Obama and other members of his administration criticized the previous administration for doing. In short, these appointments are just the sort of thing that voters should consider when they head to the polls in November.

From an Americans with Limited Government press release:

Senator Ted Kennedy amicus brief opposing presidential recess appointments uncovered

Jan. 9, 2012, Fairfax, VA—Americans for Limited Government released this morning an Amicus Curiae brief by the late Senator Ted Kennedy from 2004 where he argued against the validity of the appointment of Judge William H. Pryor, Jr. to the federal bench in a recess appointment.

The discovery of the Kennedy legal brief is particularly significant in light of President Obama's appointment last week of Richard Cordray to the Consumer Financial Protection Bureau and Sharon Block, Terence Flynn, and Richard Griffin to the National Labor Relations Board. Ironically, the NLRB "recess" appointment of Block was a staffer for Sen. Kennedy.

Bill Wilson, President of Americans for Limited Government points out, "Senator Kennedy vehemently objected to a presidential appointment that occurred while the Congress was in recess, Obama's appointments did not even occur during a recess and clearly violate the constitutional separation of powers provisions. Kennedy must be spinning in his grave."

Article 2, Section 2 of the U.S. Constitution states, "He (the president) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law."

The Constitution continues to deal with appointments during Senate recesses stating, "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

"This last section is where Obama has run afoul of the Constitution, as even Senate Majority Leader Harry Reid admits that the Senate was in session, when Obama circumvented the highest law of the United States to make his appointments," Wilson continued.

Reid kept the Senate in the exact pro-forma Senate sessions in 2007 to block President George W. Bush from making recess appointments. Now, Reid is praising Obama's decision to break the very Constitution that both of them have sworn to uphold in their oaths of office.

It is anticipated that Obama's extra-constitutional appointments of Cordray, Green, Block and Fletcher will be challenged in the federal courts. The only question is will someone file Senator Kennedy's brief to remind the courts just how far beyond the normal constitutional lines Obama has gone.

Attachments:

Sen. Ted Kennedy Amicus Brief filed in Stephens v. Evans and Jordan at http://netrightdaily.com/2012/01/former-senator-ted-kennedy-opposed-recess-appointments/.

Among current Democratic senators, Obama isn't doing very well on the legal front. From the Daily Caller:

Only one Senate Democrat, out of 51 asked, told The Daily Caller that President Barack Obama was correct when he claimed the Senate was in recess Jan. 3. That’s the day Obama announced that he had exercised his executive authority to fill four top posts during a Senate recess.

Their GOP counterparts slammed Obama for claiming the power to decide when the Senate is in recess.

Democratic Sen. Tom Carper of Delaware said he believed the Senate was in a recess when Obama made the controversial appointments, according to a statement from his office.

A spokesperson for South Dakota Democratic Sen. Tim Johnson said he "supports the appointments," but wouldn't answer whether Johnson thought the Senate was in recess.

The Hill:

Republican National Committee Chairman Reince Priebus said a handful of recent recess appointments serve as "one more chapter in Barack Obama's book of trampling the Constitution."

"When it comes to power, when it comes to the growth of government, this president takes the cake. He gets the blue ribbon," he said on Fox News Sunday.

Republicans have been crying foul for days, after Obama decided to push through several contentious nominations without Senate approval. On Wednesday, he announced Richard Cordray would serve as the first director of the Consumer Financial Protection Bureau, and followed that up by appointing three members to the National Labor Relations Board.

What is particularly driving GOP ire is the fact that the Senate has been kept in brief pro forma sessions in an effort to block such recess appointments. The White House ignored those sessions, calling them gimmicks, leading the GOP to accuse the president of an unprecedented power grab.

Robert Knight in the Washington Times:

Back in 1973, when the Nixon administration was under fire for Watergate, Press Secretary Ron Ziegler uttered an unforgettable response when caught in a lie during a news conference: "This is the operative statement. The others are inoperative."

Well, the Obama administration just topped that by essentially declaring the U.S. Constitution "inoperative.” President Obama did not use that term when making an illegal recess appointment of Richard Cordray to the new post of consumer czar on Wednesday, but he might as well have.

Mr. Cordray now heads the Consumer Financial Protection Bureau, which will do its best to strangle any thought that business owners might have of getting out from under oppressive bureaucracy long enough to create any new jobs that aren’t in the government.

Remember, these are the same folks who thought it was a great idea to let Rep. Barney Frank, Massachusetts Democrat, bring the magic of Fannie Mae and Freddie Mac to the financial sector with the awful Dodd-Frank law. But merit aside, the Cordray appointment was made outside constitutional bounds.

The New York Times? Yes!

To many Republicans and some constitutional scholars, President Obama’s decision last week to ignore a sitting Senate and sidestep the confirmation process for several appointees risked nothing short of an end to the Senate’s role of providing advice and consent on presidential appointments.

Senate Republicans had been using procedural rules and filibusters to block or delay the confirmation of nearly 200 agency nominations, leaving vital positions vacant and neutralizing agencies they did not like. That compelled Mr. Obama to escalate matters further on Wednesday, making recess appointments even though the Senate was technically not in recess.

Senator Harry Reid of Nevada, the majority leader, began using pro forma sessions, lasting just seconds, in late 2007 to keep the Senate nominally in session and prevent President George W. Bush from making recess appointments.

Republicans have responded with stalling tactics that have left 74 nominees pending consideration on the Senate floor and an additional 107 bottled up in committees, many of them for economic posts or to run initiatives that Republicans fiercely oppose. 

And now on to the myths and facts.

MYTH: Senate Republicans Were Holding Back President Obama’s NLRB Nominees:

“‘If Senate Republicans had their way, the NLRB would be unable to operate indefinitely,’ Mary Kay Henry, president of the 2.2 million member SEIU, said in an e-mailed statement. ‘In these economic times, shutting down or hobbling an independent federal agency charged with protecting workers’ rights is simply not an option.’” (Kate Andersen Brower & Holly Rosenkrantz, “Obama To Make Recess Appointments To Labor Relations Board,” Bloomberg, 1/4/12)

“Secretary of Labor Hilda Solis similarly applauded Obama for making the NLRB appointments and said that had he not done so, Republicans would have continued blocking the nominees to the detriment of the economy. ‘We can’t afford to not move on very important issues that affect working class people, and particularly working Americans that are struggling right now,’ Solis said during a Wednesday conference call with reporters. ‘We need to know there’s a sense of security and ... that we honor the ability to collectively bargain.’” (Dave Jamieson & Jennifer Bendery, “Obama NLRB Recess Appointments Thrill Labor, Infuriate Business,” Huffington Post, 1/4/12)

“‘It was disheartening to think that the board was about to become non-functioning,’ said Wilma Liebman, a labor attorney and former NLRB chairman whose term expired this year. ‘I am relieved that the president decided to do this … [Republicans] made it quite clear they weren’t going to confirm anyone else [to the board] during the president’s term.  At some point, you have to look for another route.’” (Joseph Williams, “President Obama Appoints Three To NLRB,” Politico, 1/4/12)

FACT: A Democratic-Run Senate Obstructed Nominees To The NLRB:

1)


“Today, President Barack Obama announced his intent to nominate the following individual to a key Administration post: Terence F. Flynn, Member, National Labor Relations Board” (Press Release, “President Obama Announces Another Key Administration Post, 1/5/11,” The White House, 1/5/11)

“President Barack Obama on Wednesday said he will use a recess appointment to put two Democrats and one Republican on the National Labor Relations Board … The appointees include Democratic union lawyer Richard Griffin, Democratic Labor Department official Sharon Block and Republican NLRB lawyer Terence Flynn.” (Melanie Trottman, “Obama Makes Recess Appointments To NLRB,” The Wall Street Journal, 1/4/12)

                                           
2)
“Today, President Barack Obama announced his intent to nominate Brian Hayes as a member of the National Labor Relations Board.” (Press Release, “President Obama Announces Intent To Nominate Brian Hayes As NLRB Member,” The White House, 7/9/09)

“U.S. Senator Mike Enzi (R-Wyo.), Ranking Member of the Senate Health, Education, Labor and Pensions (HELP) Committee today commended the Senate for the confirmation of Brian Hayes to the National Labor Relations Board (NLRB).” (Press Release, “Enzi Commends Senate Confirmation Of Brian Hayes To National Labor Relations Board,” Sen. Mike Enzi, 6/22/10)

3)

President Obama Announced The Nominations Of Richard Griffin And Sharon Block To The NLRB On December 14, 2011. (Press Release, “President Obama Announces More Key Administration Posts,” The White House, 12/14/11)

“The White House announced Wednesday that President Obama plans to appoint three new members to the National Labor Relations Board, continuing his end-run around the Congressional approval process. The White House said in a statement that Obama has tapped Sharon Block, Terence Flynn and Richard Griffin to fill seats on the board via recess appointments.” (James O’Toole, “Obama Names New Labor Board Members,” CNN, 1/4/12)


MYTH: President Obama’s Recess Appointments Are Constitutional & Legal:

“Pfeiffer, in a post on the White House website, accused Senate Republicans of making an ‘overt attempt’ to block the president from using his constitutional authority to make recess appointments by insisting the chamber remain in pro forma session. ‘Gimmicks do not override the president’s constitutional authority to make appointments to keep the government running,’ Pfeiffer wrote” (Laura Litvan, “Obama Defies Republicans, Installs Cordray At Consumer Bureau,” Bloomberg, 1/4/12)

FACT: President Obama’s Recess Appointments Are Unprecedented & Unconstitutional:

“President Obama’s appointments of Richard Cordray as head of the new Consumer Financial Protection Bureau, and of three new members of the National Labor Relations Board, are all unconstitutional … Each of these jobs requires Senate confirmation. The president’s ability to fill them without that confirmation, using his constitutional power to ‘fill up vacancies that may happen during the recess of the Senate,’ depends upon there actually being a recess … Mr. Obama is claiming an open-ended authority to determine that the Senate is in recess, despite that body’s own judgment and the factual realities. That is an astonishing and, so far as we can tell, unprecedented power grab.” (David Rivkin, Jr. Lee A. Casey, “Obama’s Reckless Recess Ploy,” The Wall Street Journal, 1/6/12)

“When President Obama's Department of Justice (DOJ) defends Obama’s ‘recess appointment’ – made today after the Senate adjourned yesterday – his lawyers will have to argue against the position they took on recess appointments last year, during a Supreme Court hearing. Deputy Solicitor General Neal Katyal told Chief Justice John Roberts that ‘the [congressional] recess has to be longer than 3 days’ for the president to have the power to make a recess appointment, recalls House Speaker John Boehner, R-Ohio, while criticizing Obama’s recess appointment of Richard Cordray to lead the Consumer Financial Protection Bureau.” (Joel Gehrke, “Obama's DOJ Says 'Recess' Appointment Illegal,” Washington Examiner, 1/4/12)

And a few more odds and ends:

LaborUnionReport: Ex-Miami Police union boss charged with stealing $200,000

Big Government: UPDATE: Search warrant for SEIU operative who voted from Wisconsin hotel

Time to eat your peas, teachers. Illinois Review: Zion-Benton teachers strike to force guaranteed raises on time

Big Government: Obamacare waiver tally: 543,812 for union members, 69,813 for private employees

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