Alexander Opposes Nominations Of “Unconstitutional Appointees” To NLRB

Thursday, May 16, 2013

U.S. Senator Lamar Alexander, the ranking member of the Senate Health, Education, Labor and Pensions Committee, Thursday said he would oppose the nominations of Sharon Block and Richard Griffin to the National Labor Relations Board because “they continued to decide cases after the federal appellate court unanimously decided they were unconstitutionally appointed.”

Senator Alexander said: “This is a part of a disturbing pattern of end-runs around Congress, whether it is with more czars than the Romanovs had; or executive orders that stretch the limits of executive authority; or using waiver authority to create, in effect, a national school board; or the Secretary of Health raising money privately for private organizations to do what Congress has refused to do; or whether it is recess appointments when there is no recess, it is important for our country’s liberty to protect the separation of powers. Therefore, I cannot support the nominations of these two individuals.”

Senator Alexander added: “Recess appointments have to be made during recesses, or we have a situation where the president can just ignore Article One, the principal curb on the power of the executive.”

Senator Alexander continued: “It is important to have a fully confirmed National Labor Relations Board. This agency is charged with creating stability for employees, employers and unions to allow America’s businesses to focus on succeeding and growing. But there is a troubling lack of respect for the constitutional separation of powers and for the Senate’s role of advice and consent that is standing in the way of this confirmation process.

“I also believe their decision to stay on creates enormous opportunity for confusion and waste. I agree we want certainty and the best way to have certainty is to have five confirmed members of the Board. The President could nominate two equally qualified members who did not sit on the NLRB when the court had decided that they were unconstitutionally there.” 

In April, Senator Alexander introduced legislation that would prohibit the National Labor Relations Board from taking any action that requires a quorum until the board members constituting the quorum have been confirmed by the Senate, the Supreme Court issues a decision on the constitutionality of the appointments to the board made in January 2012, or the first session of the 113th Congress is adjourned.

On Feb. 13, Senator Alexander called on Sharon Block and Richard Griffin to “leave the board,” after the U.S. Court of Appeals for the District of Columbia in January ruled their appointments to the NLRB by President Obama during a so-called “recess” session of the United States Senate were unconstitutional. 

In March, with 17 cosponsors, he introduced a budget amendment to defund decisions and regulations made by the unconstitutional NLRB “quorum.” 

Senator Alexander’s full opening remarks are below:

Thank you Mr. Chairman and I look forward to this hearing of the five nominees and I thank them for their willingness to serve. It is important to have a fully confirmed National Labor Relations Board. This agency is charged with creating stability for employees, employers and unions to allow America’s businesses to focus on succeeding and growing. But there is a troubling lack of respect for the constitutional separation of powers and for the Senate’s role of advice and consent that is standing in the way of this confirmation process. 

The Constitution laid out a balance of powers that has worked pretty well and pretty much as the Founders intended for 227 years. Article I of the Constitution has made us different from most governments at the time. Most of our Founders, not all of them, but most of them did not want a king and to ensure that we did not have a king, our country had a Congress and clear powers were granted to Congress which could not be abrogated. The clearest curbs on the power of a monarch or the power of an executive in our Constitution are Article I of the Constitution creating the Congress and the Bill of Rights. Article II enumerates the executive powers of the presidency and it recognized a very practical reality of the day – long congressional recesses. One of the powers reserved for the Senate is probably the best known authority of this body – that is Article II, Section II, requiring the Senate to consent to the appointment of ambassadors, public ministers, counsels, and other officers. We do that for about a thousand of the president’s nominees and in each of the last two Congresses we have worked in a bipartisan way to make it easier for the president to make the nominations and for the Senate to consider them in a reasonable period of time.

The Founders anticipated there would be periods of time when the Senate and the House would not be in session and the Senate would not be able to consent to such appointments so they put into the Constitution a provision saying that during these times, the president could make a recess appointment for “vacancies that may happen during a recess of the Senate.”  At the beginning of this nation this was important. In those days, there were long extended periods of time between the annual sessions of Congress, the Members of Congress were spread all over the country.  Senator Sam Houston of Texas, had to go from Texas to New Orleans, get on a boat, come up the Mississippi River, ride a horse and take a stagecoach to finally get here and take the same route home. And so it was envisioned that during the time the senators were gone, the president could make recess appointments.   

Some may wonder why we still have recess appointments with today’s modern communications and modern travel but it is still there in the Constitution. But President Obama on Jan. 4, 2012 acted as though it weren’t there at all.  The president made recess appointments while the Senate was not in recess.  This is unprecedented – never been done. It was done during a time when the Senate Majority Leader Reid had proposed a resolution the Senate had unanimously adopted that said the Senate was in session and that it would convene every three days.

Now, over time, many presidents have expanded their use of the recess appointment power, yet no one has gone as far as President Obama did on that day. The Senate must decide when we are in session, not the President.  If it were otherwise, there would be no point to having advice and consent power in the Constitution at all. The president could appoint officials at any time he wished. The Senate could return from lunch and find there’s a new Supreme Court justice. 

On Jan. 4, the President made three appointments to the National Labor Relations Board. Two are still there. 

After President Obama took this action, the so-called recess appointees began deciding cases.   One of those cases was appealed to the U.S Court of Appeals for D.C.. The company appealed because it argued that the company didn’t have a required quorum of three valid constitutionally-appointed members. 

A three-judge panel of the [District of Columbia’s U.S.] Circuit Court of Appeals agreed.  It unanimously said these ‘recess appointments’ violated Article II, Section 2 of the [United States] Constitution - that the President had made recess appointments when there was no recess.

That court holds a special place in the American judicial system because all NLRB decisions may be appealed there and many are. Therefore, all the cases in which these nominees have participated or will participate may also be vacated, if their votes provided the Board with the necessary quorum.    

Since the so-called recess appointees were sworn in, the NLRB has issued 910 published and unpublished decisions – 209 of those came after the Noel Canning decision, which is the case at subject. All of these can be appealed to the DC Circuit and vacated.  

I have met with each of the nominees before us today. I do not question their qualifications. They all have distinguished backgrounds. 

I know that Sharon Block and Richard Griffin feel obligated to stay in those positions after a preeminent court ruled - they were invalidly appointed because of the oath they made. I appreciate their candor and dedication to public service.

My problem is not with their qualifications. My problem is that they continued to decide cases after the federal appellate court unanimously decided they were unconstitutionally appointed.
 

Not only has the President has shown a lack of respect for the Constitutional role of the separation of powers and the curb on the executive branch that Article One provides, but I believe these two individuals have as well. 

This is a part of a disturbing pattern of end-runs around Congress, whether it is with more czars than the Romanovs had; or executive orders that stretch the limits of executive authority; or using waiver authority to create, in effect, a national school board; or the Secretary of Health raising money privately for private organizations to do what Congress has refused to do; or whether it is recess appointments when there is no recess, it is important for our country’s liberty to protect the separation of powers. Therefore, I cannot support the nominations of these two.

I also believe their decision to stay on creates enormous opportunity for confusion and waste. I agree we want certainty and the best way to have certainty is to have five confirmed members of the Board. The President could nominate two equally qualified members who did not sit on the NLRB when the court had decided that they were unconstitutionally there. 

I don’t have the same problem with the three other nominees here today, Chairman Pearce and Phil Miscimarra and Harry Johnson. They have been nominated through the regular process. And the best way for the president to ensure certainty is to nominate two well-qualified individuals who did not continue to decide cases after the court decided that they unconstitutionally appointed.

If he does, I will pledge to work with the chairman for their speedy confirmation. Thank you Mr. Chairman.

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