NLRB overreach: Weekend recess edition

If the US Senate takes a weekend off--which they almost always do--does that mean it is in recess?

From The Hill:

Sen. Chuck Grassley (R-Iowa) is asking the Obama administration whether recess appointments overnight and on the weekend are possible after the president's decision this week to appoint four federal officials despite pro forma sessions by Congress.

In a letter to Attorney General Eric Holder, Grassley and seven other Republican senators on Friday pressed the Obama administration for more details about its decision to make the controversial recess appointments.

In the Washington Post, Jennifer Rubin has a new nickname for the president: Obama, the Constitutional Anarchist.

John Carney's CNBC NetNet blog: Former NLRB Chairman: President Obama Used Recess Appointments to do a Favor for Big Labor

Daily Caller: Dem NLRB "Recess' Appointments Rushed, Don't Appear on White House Nominee List

Yes, all presidents use recess appointments. Peter Kirsanow was such an appointment by President George W. Bush in 2006--to the NLRB. Writing for NRO's Corner, he has this to say:

President Bush appointed me to the National Labor Relations Board during a Senate recess at the beginning of 2006. Like many, but not all, such appointments, it irritated members of the party not in the White House (Senator Kennedy referred to me as "Attila the Hun," a demonstrably inaccurate reference as I more resemble Hannibal the Carthaginian). Nonetheless, the appointment was made during a recess. The legality of President Obama's appointments to the NLRB and the CFPB turns on the definition of that term.

A 1921 Attorney General Opinion regarding whether the president had the power to make an appointment during a 28-day intrasession recess concluded that the "president is necessarily vested with large, although not unlimited, discretion to determine whether there is a genuine recess making it impossible for him to receive the advice and consent of the Senate."

The administration and its supporters will rely on the purportedly large discretion the president has in determining whether there's a "genuine" recess. But others will point to the phrase "making it impossible for him to receive the advice and consent of the Senate." Those others may include the D.C. Circuit Court, where any challenge to the appointments is likely to be heard.

I had to submit to a background check in my last job. President Obama knows better, I guess.

From the Foundry blog:

Two of President Obama's "recess" appointments will begin their tenure at the National Labor Relations Board without having undergone background checks required of all nominees to the board, which are used to determine any past impropriety or conflicts of interest.

The Senate committee handling the nominations of Democrats Sharon Block and Richard Griffin to the NLRB never received the required paperwork from the two nominees. The president submitted the nominations to the Senate on December 15, a day before it entered pro forma session, with most Senators returning to their home states.

The paperwork includes information required for a background check, "which addresses whether taxes are paid and if the nominee is facing any pending civil or criminal investigations," according to a committee release. "This also ensures that there are no conflicts-of-interest before being confirmed for the position."

After the committee receives that information, staff generally conduct interviews during which they ask nominees about the information provided. A source familiar with the committee’s advice and consent work said its staff – and hence committee members – would be woefully uninformed on the nominees until paperwork was filed and those interviews took place.

The Wall Street Journal:

White House officials have made clear that the president used a controversial recess appointment to install Richard Cordray as chief of the new Consumer Financial Protection Bureau because Senate Republicans refused to allow a vote on his nomination. But what about three others who received so-called recess appointments to serve on the National Labor Relations Board?

Two of the three, both Democrats, were just nominated last month, giving the Senate no time to confirm them, even if Republicans were willing. The third, a Republican, was nominated a year ago, but there is little evidence that Democrats pushed for a vote on his nomination, perhaps because installing him without also confirming another Democrat could have given Republicans a majority on the board.

White House Press Secretary Jay Carney said the president acted because without the NLRB nominees in place, the board would not have a quorum and could not function. So why not submit the nominations earlier to give the Senate more time to act?

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