WASHINGTON, D.C. | February 7, 2012
In January, President Obama shocked many across the country when he made three so-called recess appointments to the National Labor Relations Board (NLRB) – despite the Senate not being in recess.
This unprecedented action touches upon a number of constitutional powers. The first is the president’s authority to fill vacancies through recess appointments, a power which no one questions. The other constitutional powers involved allow for Congress to “determine the Rules of its Proceedings” and prevent one body of the legislative branch from adjourning more than three days without the consent of the other.
Senate Democrats understood the value of these constitutional principles in 2007 when they first established the practice of convening pro forma sessions every three days in order to “prevent recess appointments,” as Democrat Leader Harry Reid said at the time.
The procedural maneuvering crafted by Senate Democrats worked, that is until President Obama decided he can determine what counts as legitimate business of the Congress. According to the rationale of the administration, pro forma sessions are nothing more than a “gimmick” that do not interrupt a recess of Congress; therefore, the president can fill these positions without the Senate’s consent.
Decisions based on shaky legal ground can often lead to embarrassing contradictions. Days before the president decided to become the arbiter of congressional rules and proceedings, Congress approved a bill to prevent a tax hike on millions of Americans. Later that day the president signed that very same bill into law. Either the payroll tax cut passed by the Senate during a pro forma session is the law of the land and the recess appointments are invalid, or 170 million Americans are receiving tax relief unlawfully and the appointments should stand. No amount of legal manipulation can allow the president to have it both ways.
We’ve witnessed this president take extraordinary action that stretches the limits of his office and undermines our all-important system of checks and balances. I realize that in many ways the appointment process is broken. However, no president should endorse an unconstitutional scheme in order to address a political problem.
Not only has this action triggered a constitutional crisis; it has denied the public an opportunity to independently judge whether these individuals are qualified to serve.
The Republican appointee was nominated a year ago, yet Democrats in control of the Senate refused to schedule a hearing on the nomination. Running roughshod over the appointment process, the president’s Democrat appointees hadn’t even completed the Senate’s routine background check at the time of their “recess” appointments.
Thanks to the president’s action, three scarcely known individuals are now empowered to dramatically transform our nation’s workforce. The highly controversial nature of the appointments guarantees the rules and decisions the new board members adopt will be constitutionally suspect and legally challenged. Even the president’s own Justice Department, in what I would characterize as an understatement of the gravity of the situation, noted the issues surrounding these appointments “create some litigation risk.”
Make no mistake, every action taken by the board will be tainted, creating greater uncertainty for employers and additional costs for taxpayers.
The president has steered the country into uncharted waters. The question remains: Why? At a time when millions of Americans are out of work, why threaten the certainty and confidence our economy needs to grow and prosper?
Is it so unions can have even greater access to an employee’s personal information and virtually unfettered access to an employer’s property?
Or so workers have just 10 days to consider the consequences of joining a union before casting their ballot?
Perhaps the decision was made to deny employers their legal right to speak to employees during an organizing campaign?
Maybe it was to give the NLRB new opportunities to weaken workers’ right to a secret ballot.
These are just some of the items on Big Labor’s agenda designed to strengthen its power by weakening protections for workers and employers. It is an agenda rejected by Congress, yet one that has made great progress in recent years thanks to the activism of the Obama labor board. The president has provided his union allies a critical lifeline to wreak further havoc on America’s workplaces.
The central issue before the committee today isn't the process that led to these appointments, although that will be part of the discussion. Our primary concern is the fear and uncertainty this action has unleashed – the fear of the activist NLRB’s future actions and the uncertainty of whether its mandates and decisions can stand under constitutional scrutiny.
I look forward to discussing these matters further with our witnesses.
# # #