Obama Plays Cat and Mouse With Congress And His NLRB Appointments

USA Today  and  ABC News  Try  Spins  to  Make  President  Appear  as  the  Victim

At least 59 million1 people were not surprised last week when “the United States Court of Appeals brought the president back to Earth and reminded him that the Constitution’s Appointments Clause and the U.S. Senate are very much part of reality by voiding three of Obama’s recess appointments to the National Labor Relations Board.”2

Background

This latest attempt by Obama to bypass Congress occurred last January when he made three appointments to the NLRB, replacing members whose terms had expired, and also named Richard Cordrey to head the Consumer Financial Protection Bureau ”while the Senate was away on its Christmas holiday.”Well, sort of a holiday.  A USA Today article stated the Republicans who were involved in the lawsuit “said the chamber stayed in a ‘pro forma’ session during the time in question denying Obama the right to make recess appointments… In these ‘pro forma’ sessions, a senator would gavel an empty chamber to order every few days and then recess again.”4,5,6

The ABC News blog carried this quote: “Congressional dysfunction and congressional obstructionism,” was the way Washington College of Law Professor Stephen Vladeck described the actions of the Republican Senators.  He went on to say, “I think the point is that Congress should not be actively trying to thwart the president’s appointment power.”7

Wow, makes the Republicans look like spoiled sports.  But, not so fast!  Let’s take a big picture look at this on-going battle in our nation’s capital.  The members of the NLRB had terms with expiration dates, so their departures were known well in advance.  The President knew he would be in for more good fights during the approval process of any of his nominees.  The inherent philosophical differences between the Chief Executive and the Republicans had been aggravated by several NLRB decisions in 2011.8,9

The  President’s  Rationale  and  Republicans  Countermove

So, Obama figured he could get around one of his main inconveniences in life (Congress) and announced his nominees on December 15, 2011 or just before Congress was scheduled to leave for the holidays.  On January 4, 2012, the President declared he had the authority to act because he claimed Congress was in recess, when in fact, it had decided to trump the President’s move by declaring itself to be in “pro-forma” session.

Nevertheless, Obama said his nominees were now on the Board with, “But when Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as President to do what I can without them.”10  This is a very interesting statement in view of the fact that even eight days later, Congress had still “not received financial or tax data, biographic information, records of campaign contributions, or information about potential civil or criminal judgments or conflicts of interest,”10 which are essential to the approval process.

Now  What?

The three judge Court of Appeals panel (all appointed by Republican presidents) had declared that Congress was officially in session when the President made his appointments.  It also held that the recess appointment procedure may be used only if the vacancies occurred while Senate is in its annual recess between sessions.  The Administration plans to appeal to the Supreme Court.  If it is not able to have the Appeals panel’s decision overturned, then all decisions by the NLRB since the January, 2012 appointments would be invalid for lack of a quorum.  In addition, the NLRB could not act until this issue is resolved as it would only have one duly appointed and confirmed member.

In the mean time, we can relax and replay statements from both sides.  White House spokesperson Dan Pfeiffer wrote last January, “Republican Senators insisted on using a gimmick called ‘pro forma’ sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running.”7

However, the court disagreed and cited a 1976 case on campaign finance law: “Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. The checks and balances that the Constitution places on each branch of government serve as ‘self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.’”  And Sen. Orrin Hatch (R-Utah) noted that the court’s ruling, “will go a long way toward restoring the constitutional separation of powers.”7

Stay tuned for the next exciting round!

1 – Approximate number of voters supporting Mitt Romney in the 2012 election, www.politico.com, 11/29/2012
2 – Lloyd Green, www.FoxNews.com, 1/25/2013
3 – Rick Ungar, www.forbes.com, 1/25/2013
4 – David Jackson, USA Today article printed in the Cincinnati Enquirer, 1/26/2013
5 –  From www.archives.gov>charters, Article II Section 2, second paragraph of the U.S. Constitution declares that the President shall appoint specific and “all other Officers of the United States” with the approval of Congress.  The next paragraph also states, “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.”
6 – This legal matter started when an NLRB decision went against a family owned business in Washington state.  It argued that the NLRB’s decision was invalid as it did not have a quorum when the decision was made.  This was based on the charge that the Senate was not in recess when the President made his appointments to the Board. (same source as footnote #3)
7 – Sarah Parnass, www.abcnews.go.com, 1/25/2013
8 – The Machinists union had filed an unfair labor complaint against Boeing when it moved part of its 787 Dreamliner production to South Carolina, a “right-to-work” state.  When Boeing eventually agreed to a contract with the union members in Washington state, which included guaranteeing the production of the new 737MAX there, the union considered “it to have resolved our issues with Boeing,” according to the union’s spokeswoman Connie Kelliher.  The NLRB followed by dismissing its complaint against Boeing. (Amy Bingham, www.abcnews.go.com, 12/9/2011)
9 – And there was the issue of “fast-track union elections” which the NLRB pushed through in Obama-like fashion in December, 2011 but was overturned six months later. “On Monday, May 14, 2012, a federal judge ruled in favor of the U.S. Chamber of Commerce’s request that the quickie elections rules be invalidated. Although a number of issues were raised in the case concerning the NLRB’s rule making power, the court ruled only on the question of whether a quorum was present when the Board adopted the rules.”
“The quorum issue is more complex that would appear on its face. The Board sometimes acts through ‘electronic’ proceedings. One Board member, Brian Hayes, the Board’s sole Republican, did not take part in the December 16, 2011 NLRB electronic vote to adopt the final rule. Hayes only had a matter of hours to vote on the rule since it was posted for final action on the day it was adopted. The court ruled that since Hayes did not affirmatively take a position on the proposed rules, nor indicate that he was abstaining, there was no indication that he participated in the decision. Without his participation, the Board lacked the required quorum.” (Barry M. Willoughby, www.delawareemploymentlawblog.com, 5/18/2012)
10www.realclearmarkets.com, 1/12/2012

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