Are Obama's NLRB Appointments Constitutional?

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NLRB logoRepublican objections to President Obama's temporary appointments last week to the National Labor Relations Board (NLRB) haven't been unexpected. The board, by custom, must consist of three members of one major party and two of the other. And so long as he remains in the White House, Democrats will enjoy an automatic majority. But at least two appointments may also be unconstitutional, say critics. That's because the president's referrals to the Senate of the two Democratic nominees, Sharon Block and Richard Griffin, were made during a period in which senators were not on official recess. Block, Griffin and the Republican nominee, Terence Flynn, were sworn in last Monday. But the controversy surrounding the appointments is no dead letter. Indeed, a number of groups already have joined forces to file a complaint in federal court.

The Obama administration's filling of vacancies on the National Labor Relations Board has to rank as a textbook example of how to circumvent the Senate. Normally with five members, the board for several years had operated short-handed. For a 27-month period starting in January 2008, in fact, it had just two members, Chairman Wilma Liebman (Democrat) and Peter Schaumber (Republican). Getting back to full strength has proven easier said than done. Two Democratic nominees, Craig Becker and Mark Gaston Pearce, each with extensive experience as a union lawyer, faced a GOP Senate filibuster early in 2010; Becker in particular had left a controversial paper trail of pro-union radicalism during his days as a law school professor. That March, President Obama, rather than prolong the suspense, named Becker and Pearce to the board via temporary recess appointment. The following month, they took office. In June 2010, Pearce, though not Becker, received a Senate appointment along with another nominee, Republican Labor Policy Director for the Senate Committee on Health, Education, Labor and Pensions (HELP) Brian Hayes

In the meantime, Schaumber's tenure would expire in August 2010 and Liebman's would end a year later. The latter's role as chairman, in turn, was assumed by Mark Pearce. Even including Hayes, the NLRB for the last several months of 2011 operated with only three members. And with Obama in December withdrawing the still-controversial Becker from nomination for a full term, the board potentially faced another period with just two members. Given the Supreme Court's June 2010 ruling in New Process Steel v. NLRB, which held that two members constituted an insufficient quorum for rendering decisions, NLRB faced the year 2012 as virtually inoperative - and with a backlog of about 175 cases.

President Obama responded once more with temporary recess appointments, naming Democrats Sharon Block and Richard Griffin to the board along with Republican Terence Flynn, the latter's nomination stalled in the Senate for a year. These members were sworn in office last Monday, January 9, by Chairman Pearce at board headquarters. As part of this package deal, the president appointed former Ohio Attorney General Richard Cordray to head the new Consumer Financial Protection Bureau (CFPB) after the Senate had blocked his earlier nomination. He, too, was sworn in last Monday. The president defended his appointments as a matter of necessity:

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. I've got an obligation to act on behalf of the American people. And I'm not going to stand by while a (Republican) minority in the Senate puts party ideology ahead of the people that we were elected to serve. Not with so much at stake, not at this make-or-break moment for middle-class Americans. We're not going to let that happen.

A number of critics aren't happy with the move. Granted, Democratic NLRB appointments generally favor union over employer interests, but that goes with the territory. The two Democrats are no exception. Sharon Block, who graduated from Columbia University and Georgetown University Law Center, most recently served as deputy assistant secretary for congressional affairs at the U.S. Department of Labor under Secretary Hilda Solis. Prior to that, she was senior labor and employment counsel for the Senate HELP Committee, serving under Sen. Ted Kennedy, D-Mass. Before that, she served at NLRB as senior attorney to then-Chairman Robert Battista. Richard Griffin, educated at Yale and then Northeastern University School of Law, was general counsel to the International Union of Operating Engineers (IUOE) before coming aboard NLRB. Since 1983, in fact, he had held a variety of positions with the IUOE, including a lengthy stint as a member of that union's central pension fund board of trustees. Griffin also served for more than 15 years as a board member of the AFL-CIO Lawyers Coordinating Committee.

The qualifications of Block or Griffin aren't in question. Nor is the general authority of a president to make recess appointments. George W. Bush had made more than 60 of them by the close of his first three years in office. What is at issue is the legality of the appointments. For Obama, say critics, in his haste to ensure a union-friendly NLRB, disregarded constitutionally-defined procedure. The nut of the argument is this: The Senate, where the authority to approve presidential nominations resides, was not in recess at the time President nominated Block and Griffin on December 15. The following day, December 16, the Senate adjourned for the year, but without declaring an official recess. Senators after that were in "pro forma" work sessions. Thus, the appointments, announced on January 4, did not qualify as "recess appointments."

The Senate, it is important to understand, does work during pro forma sessions. And it often does so by unanimous consent, regardless of how many or few senators show up. The Senate's passage of a two-month payroll tax cut extension two days before Christmas is a good example. Senators changed a standing order by unanimous consent during a pro forma session. But Obama insists this was part of a recess. Reagan-era Attorney General Edwin Meese and Heritage Foundation Center for Legal & Judicial Studies Director Todd Gaziano, in a recent guest editorial for Washington Post, called the presidential appointments "a constitutional abuse of the highest order." They wrote:

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.

The president and anyone else may object that the Senate is conducting "pro forma" sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill (i.e., the payroll tax cut extension) during a supposedly "pro forma" session on December 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be "real."

There are two other public accountability angles. First, in making the appointments, President Obama deprived the Senate of time needed to perform due diligence. Remarked Sen. Michael Enzi, R-Wyo., ranking Minority Member of the Senate HELP Committee: "The president has ignored the Senate's confirmation and vetting process." As a result, he argues, the Senate was unable to conduct background checks on the nominees in areas such as unpaid taxes, outstanding civil or criminal investigations, and conflicts of interest. As to the latter issue, there is reason for concern. Sharon Block came over from the Labor Department where she had held down the job of deputy assistant secretary for congressional affairs. Her boss, Secretary Solis, openly praised her appointment when announced. Griffin came over to the National Labor Relations Board from his post as IUOE general counsel. Other than Craig Becker, who in the past has represented the Service Employees International Union and the AFL-CIO, no other NLRB member in recent memory had been appointed directly from the legal staff of a labor organization.

Second, according to the presidential nomination and appointment tracking list website, www.WhiteHouse.gov, Block and Griffin don't appear on the list. The name of the Republican appointee, Terence Flynn, by contrast, does appear - as well it should, given that the name of the former labor lawyer and former chief counsel to NLRB members Hayes and Schaumber was submitted to the Senate in January 2011. Obama's Democratic appointments, say critics, thus circumvented the Senate's "advice and consent" authority. "It's hard to argue that the Senate was obstructing these Democratic nominees when they don't even appear on the administration's own list of nominations and appointments," remarked Glenn Spencer, a labor policy specialist with the U.S. Chamber of Commerce.

The Department of Justice wasted little time in defending all three appointments. In a 23-page memo drafted at the request of the White House and dated January 6 (though not released until January 12), Virginia Seitz, assistant attorney general for the DOJ's Office of Legal Counsel, wrote that the Senate's pro forma work sessions beginning December 17 didn't actually qualify as sessions. "As a practical matter," she opined, the Senate isn't capable of receiving and acting on nominations to the executive branch, and as such, lawmakers weren't able to exercise advice and consent responsibilities. While admitting that the Senate held pro forma sessions starting on January 3, Seitz concluded, "Those sessions do not interrupt the intra-session recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to ‘receive communications from the President or participate as a body in making appointments.'"

Critics of the memo say that it cuts corners to reach a preordained conclusion. An editorial in the January 13 Wall Street Journal called it "a made-to-order legal invention," noting: "Most of the opinion is an off-point digression on the constitutionality of recess appointments between Senate sessions, which no one disputes." The editorial added that the Senate routinely does work by unanimous consent and that "Even a single Senator alone on the floor...can use this process to modify the standing order in a heartbeat and conduct business." Sen. Charles Grassley, R-Iowa, ranking Republican on the Senate Judiciary Committee, issued a statement arguing that the opinion "relies on no Supreme Court decision" and that "many conclusions are unsupported in law or the Constitution." The memo, he remarked, "flies in the face of more than 90 years of historical practice." And Harvard-trained attorney Joseph Klein termed Obama's appointment of Richard Cordray as CFPB director "an assault on separation of powers." Obama's move, Klein stated, presupposed a nonexistent presidential authority to determine when the Senate (and for that matter, the House) is or isn't in session, even though Article I, Section 5, Clauses 1, 2 and 4 explicitly add up to a clear granting of such authority solely to each house of Congress. There is no reason why this argument can't be applied to the NLRB appointments.

Will there be a legal challenge? Actually, the future already is here. On Friday, January 13, the Springfield, Va.-based National Right to Work Legal Defense Foundation filed a motion in District of Columbia federal court challenging the legality of President Obama's NLRB recess appointments. The lawsuit, filed jointly with the Coalition for a Democratic Workplace and the National Federation of Independent Business, consolidates this and an existing suit seeking to block a new NLRB rule requiring employers to post notices informing workers of their right to form a union. National Right to Work Legal Defense Foundation President Mark Mix believes politics lies at the heart of Obama's impromptu appointments: "President Barack Obama has already shown time and again that he is willing to abuse his executive authority to force more workers into union-dues-paying ranks. Now Obama's executive abuse jeopardizes the constitutional balance our country holds dear, all in the name of paying back his Big Labor benefactors." Hopefully, the suit will focus on the NLRB appointments of Block and Griffin. This isn't a matter of partisan politics. Flynn's name appeared on the White House official list of appointments; Block and Griffin's names didn't.

There is a certain irony in the fact that President Obama is trying to define a Senate pro forma session out of existence to justify his recess appointments. For it was Obama's ally, Senate Majority Leader Harry Reid, D-Nev., who during the second term of the Bush administration virtually pioneered the heavy use of pro forma sessions as a means of circumventing presidential appointment authority. In 2007, with the Democrats now firmly in charge of the House and Senate, Reid warned Bush against making recess appointments, vowing to "keep the Senate in pro forma session to block the president from doing an end run around the Senate and the Constitution." Bush, however reluctantly, acceded to Reid's tactic and withdrew a number of nominations. That was then; this is now. Now Reid, his Senate allies and the Obama administration, apparently afflicted with short-term memory loss, have little or no problem redefining pro forma sessions as "recesses." It's up to the U.S. District Court for the District of Columbia to refresh some memories.

Related:

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