Marathon Pundit: NLRB overreach: Ruined recess edition

Friday, January 06, 2012

NLRB overreach: Ruined recess edition

Kirk opposes the appointments

The fallout from President Obama's three extra-constitutional recess appointments to the NLRB continues.

From the Wall Street Journal--paid subscription required.

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. Both the House of Representatives and the Senate are open for business. The new appointees can pocket their government paychecks, but all their official acts will be void as a matter of law and will likely be struck down by the courts in legal challenges that are certain to come.

The Constitution's Framers assumed that Congress would convene only part of each year, and that there would be long stretches during which the Senate would be unavailable to play its critical "advice and consent" role in the appointment of federal officials. Their solution was to allow the president to make temporary, "recess" appointments permitting the individuals chosen to serve for up to two years, until the end of Congress's next session. This, it was thought, would give the Senate time to act upon actual nominees for the offices once it reconvened without leaving these—perhaps critical—posts vacant for many months.

Presidents have used this authority with alacrity, especially in recent times, as a means of putting a favored nominee on the job even in the face of significant Senate opposition. Historically, the president's lawyers have advised that this is a constitutionally permissible exercise of his recess-appointment power, so long as the Senate is actually in recess.

Crain's Chicago Business:

Add Mark Kirk of Illinois to the list of U.S. Senate Republicans who really, really don't like President Barack Obama's recess appointments earlier this week.

Mr. Kirk says in a statement that the president's decision to name former Ohio Attorney General Richard Cordray director of the new Consumer Protection Bureau "is a violation of the Constitution," since Congress — though out on holiday break — technically is not in recess.

Adds the senator, "The bureau and its director are not accountable to the elected representatives of the American people or a strong board to oversee decisions."

Mr. Kirk is equally exercised over the recess appointment of three members to the National Labor Relations Board, which rules on unionization elections and the like.

Los Angeles Times:

Reporting from Washington— President Obama's decision to defy Senate Republicans and appoint four top agency officials on his own authority sets the stage for a contentious constitutional battle over the powers of the presidency and the role of Congress.

To Republicans, Obama's action amounted to "an extraordinary and entirely unprecedented power grab," according to House Speaker John A. Boehner of Ohio, who said the move would have "a devastating effect on the checks and balances" in the Constitution.

AP weighs in:

With an eye on the upcoming South Carolina primary, Republican presidential candidates on Thursday assailed President Barack Obama for bypassing the Senate to name three new members to the National Labor Relations Board.

Newt Gingrich called on Congress to eliminate funding for the agency, which Republicans claim favors labor unions. Rick Santorum said Obama "ran roughshod" over the system to appoint "radicals who can't get confirmed."

And Mitt Romney aired a new TV ad in South Carolina that goes after the NLRB for threatening a new Boeing factory in North Charleston.the union and Boeing reached a settlement, but the issue still resonates with Republican voters in the state, which holds a presidential primary election on Jan. 21.

Mitt Romney is talking tough on the NLRB. Here's a radio ad the presidential candidate is running in South Carolina:

Washington Examiner:

This attempt to circumvent the legislative branch is a violation of Obama's oath of office to uphold and defend the Constitution. Instead he is thumbing his nose at it and daring Congress, or anybody else, to stop him. It's the same sort of fundamental disrespect for the rule of law that is routinely practiced by tinhorn dictators like Hugo Chavez.

If Democrats care about preserving the Constitution, the danger of executive usurpation, and protecting the separation of powers among co-equal branches, they must stand up now and tell Obama to back off. If they stand meekly by and let him get by with it, Democrats will surely rue the day when they lose the White House, and this new, illegal power is wielded against them by a Republican president as willing as Obama to ignore the Constitution.

A president's recess appointment power exists under Article II, Section Two of our Constitution, and it requires the Senate to be in recess at least three days before the power is exercised. Nowhere does it say the president gets to decide when the Senate is in recess; only Congress can do that. It has never been understood any other way.

To justify this power grab, Obama contends that the Senate has actually been in recess for weeks because the Senate's brief pro forma sessions every three days are a sham since no official business is conducted. Obama might as well argue that his appointments are legal because the moon is made of green cheese. Article I, Section Five of the Constitution states, in part, that "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ..." The House has not consented to a Senate recess. Thus, the Senate's pro forma sessions are strictly constitutional, the Senate is legally in session, and Obama must seek its advice and consent on these appointments. Otherwise, they are null and void and will be thrown out by a federal court. Obama is counting on that not happening before November's election.

National Association of Manufacturers' ShopFloor blog:

Over the last year the NLRB has exhibited an astonishing overreach of their authority, ignored Congressional intent, and created potentially hostile work environments where none existed. The ambush elections rule, the decision in the Specialty Healthcare case, and the now-resolved complaint against the Boeing Company each had chilling effects across the manufacturing sector and overall economic growth. The NAM sued the NLRB to prevent the implementation of the "poster rule," yet another example of a Board that has taken on an improper activist role.