NLRB: Obama Bludgeons the Constitution

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Controversy swirls around President Obama's recent "recess" appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Unfortunately, far less has been heard about the president's three "recess" appointments to the National Labor Relations Board, a small independent agency that oversees some 6 million workplaces in which unions represent employees.

On January 4, the president declared, "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."

The NLRB appointments are more troubling because Congress only received the nominations of Democrats Sharon Block and Richard Griffin on December 15, 2011. Congress did not refuse to act. It could not consider the nominees because relevant paperwork was not submitted. The Committee still has not received financial or tax data, biographic information, records of campaign contributions, or information about potential civil or criminal judgments or conflicts of interest.

With the predictable expiry of the term of recess-appointed NLRB member Craig Becker in December, the Board lacked a quorum and was unable to conduct business. Which raises the question: Why didn't the president send the nominations of Ms. Block and Mr. Griffin in the summer or fall?

The Republican appointee, Terence Flynn, was nominated in January 2011, and his paperwork is complete. If Mr. Flynn had been confirmed, the NLRB would have had a quorum. But that would have left the NLRB with two Republicans and one Democrat, a situation unthinkable to both Mr. Obama and the Democrat-controlled Senate.

Mr. Obama's NLRB "recess" appointments are a challenge to Congress and a payoff to his union supporters, who provide a major share of the contributions he needs for his presidential campaign. Among other actions, the NLRB has attacked Boeing for opening a new plant in South Carolina, a right-to-work state, and is requiring all employers to place oversize posters in workplaces to inform workers of their right to unionize (but not of their right to decertify a union).

Unions are already unhappy with the Obama White House because the Employee Free Choice Act, which would have taken away the right to a secret ballot in elections for union representation and imposed mandatory arbitration in contracts between unions and newly-unionized firms, failed to pass in a Democratic Congress in 2009-2010.

So Mr. Obama has to do something, anything to assuage the worries of the shrinking organized labor sector. Twelve percent of American workers belonged to unions in 2010, compared to thirteen percent in 2000 and sixteen percent in 1990. The percentage of private-sector American workers belonging to unions was less than 7 percent in 2010, compared with 35 percent during World War II.

Union membership is growing in the public sector, but state and local governments are laying off workers due to budget problems, and that threatens union security.

Mr. Obama claims that Congress took too long to confirm Mr. Cordray, who was nominated last summer. But he cannot say that Congress refused to act on his Board nominees, when their required financial and ethics forms have not yet reached the committee in charge of confirming them, the Senate Committee on Health, Education, Labor and Pensions.

When the White House sends a nominee to the Senate HELP Committee for confirmation, the nominee is required to submit a two-part committee form. Part 1, which is made public, contains biographical information, campaign donations, and potential conflicts of interest. Part 2 consists of financial information of the candidate and spouse, including assets, tax compliance, and civil and criminal investigations.

Information in these forms sometimes leads to the withdrawal of nominees, such as Zoe Baird, nominee for Attorney General under President Clinton, for nonpayment of nanny taxes, or Linda Chavez, nominee for Labor Secretary under President Bush, for giving money to an illegal immigrant. Treasury Secretary Timothy Geithner's nomination was delayed over failure to pay taxes and Labor Secretary Hilda Solis's nomination was complicated by a tax lien on her husband.

A Senate HELP Committee rule states that the Committee cannot act on a nominee until the forms are received. According to Joe Brenckle, the Republican press secretary, the forms for Ms. Block and Mr. Griffin have yet to arrive at the Committee. So it was not possible for the nominations to be moved forward.

From the speed between the announcement of the NLRB Democratic nominations and the actual recess appointment, about three weeks, most of which was the Christmas holiday period, it is likely that the White House never intended to turn in the paperwork. The nominees did not even appear on the White House list of Nominations and Appointments until their omission was reported in the press on January 11.

Other recess appointees, such as Richard Cordray, have generally completed the committee nomination process and are usually blocked at the full Senate level before they can get a floor vote. Hence, almost all recess appointees have gone through the public vetting process before they were actually recess appointed.

If the Senate had been on recess, it would have been within the president's power to make the appointments. But the Senate was not on recess. The appointments were made on January 4, and the Senate had met the day before to start the new session and appoint conferees for the payroll extenders bill.

A 1993 Justice Department brief states, "The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives....Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days."

The relevant section of the Constitution is Article I, section 5, which states that neither the House nor the Senate can recess for more than three days without the consent of the other. The House did not consent to the Senate recessing, and so it is still in session.

Since the Senate was not in recess when Mr. Obama made the "recess" appointments, some businesses that are subject to rulings from the NLRB and the Consumer Financial Protection Bureau will challenge this year's rulings. Ultimately, the issue will be decided by the courts.

Senate Majority Leader Harry Reid started using pro forma sessions to block President George W. Bush from making recess appointments. On December 19, 2007, he stated, "I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with his controversial nominations."

And on July 28, 2008, he declared, "We have had a difficult problem with the President now for some time. We don't let him have recess appointments because they are mischievous, and unless we have an agreement before the recess, there will be no recess."

Mr. Obama believes that he no longer needs to seek the advice and consent of the Senate to appoint officials. He can just nominate them at the 11th hour, skip the required paperwork, complain when they aren't confirmed, then announce a "recess" appointment when the Senate isn't on recess. Having that power, why would he, or any future president, bother with the Senate?

Diana Furchtgott-Roth, former chief economist at the U.S. Department of Labor, is senior fellow and director of Economics21 at the Manhattan Institute. Follow her on Twitter: @FurchtgottRoth.   

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