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Running Roughshod Over the Constitution?

How can the President of the United States make recess appointments when the Senate is not in recess? That’s the question many are trying to answer after President Obama made three so-called recess appointments to the National Labor Relations Board (NLRB). The appointments perpetuate fears about the NLRB’s job destroying agenda, and raise a number of constitutional questions that must be answered.

The Obama Department of Justice has provided their opinion and unfortunately, it may lead to more questions than answers. The Wall Street Journal offers their take on the “remarkably weak” legal reasoning released yesterday by the Justice Department’s Assistant Attorney General, Virginia Seitz:

[Ms. Seitz] avers that the pro forma sessions aren't technically sessions. As "a practical matter," she writes, in those sessions the Senate isn't capable of receiving and acting on nominations to the executive branch and therefore cannot exercise its advice and consent duties. Ms. Seitz points in particular to a Senate "standing order"—the rules of order it adopts to govern its procedures—that no business would be transacted during the pro forma sessions. If the Senate itself says it can't conduct business, she says, then the President can conclude it isn't really in session.

The problem is that the Senate does most of its work by unanimous consent—meaning without objection from present Members and without a vote or quorum. Even a single Senator alone on the floor (or "as a practical matter" one from each party) can use this process to modify the standing order in a heartbeat and conduct business.

The Senate did exactly that to pass Mr. Obama's payroll tax holiday in December, changing a standing order by unanimous consent to conduct business during an ostensibly pro forma session. Mr. Obama signed that bill. Either that was a real session and therefore his recess appointments are unconstitutional or the bill was invalidly enacted and therefore unconstitutional. Both can't be true.

The practical effect of Ms. Seitz's legal logic is that the President could make a recess appointment when the Senate adjourns for the day, or for lunch.

This kind of appointment  process would deny Congress and the public an opportunity to judge the qualifications of the appointees. As Diana Furchtgott-Roth, senior fellow at the Manhattan Institute, writes in the Washington Examiner, that is certainly the case with two of the recent NLRB appointments:

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. …

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.

On behalf of America’s workers and employers, the House Committee on Education and the Workforce has requested documents and communications surrounding the NLRB appointees to independently determine whether they are qualified to serve.

While uncertainty hangs over these controversial recess appointments, one thing is undeniable: Congress must continue to hold the board accountable and take action to rein in the NLRB. Republicans have called on President Obama to work with Congress on responsible reforms that will do just that. We can’t wait for Democrats in Washington to do their job.


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