The political and legal reaction to President Obama's three "recess" appointments to the National Labor Relations Board continued apace today.
The Cato Institute's Walter Olsen points out that the New York Times editorial page celebrated the President's actions, including a hardy "Hear, Hear":
Announcing the appointments, Mr. Obama also asserted a welcome new credo: “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.”
Yet, when President George W. Bush used the "constitutional gimmick" of recess appointment to fill several posts, the Times asserted:
It is disturbing that President Bush has exhibited a grandiose vision of executive power that leaves little room for public debate, the concerns of the minority party or the supervisory powers of the courts.
In a piece today, the Daily Caller expands on the Republican refrain that at least two of the appointees were not submitted in time to allow the Senate to consider their nominations. The author notes that the White House's own web page listing Presidential nominations fails to include the names of Richard Griffin and Sharon Block, but includes this retort from White House spokesman Jay Carney:
“Any doubt about the Senate’s intention, or the Republicans in the Senate’s intention of allowing any nominee to come forward can be,” Carney said Thursday, ”was demonstrated by the fact that they wouldn’t even allow the Republican nominee to get to a committee vote so — who had been there for almost a year.”
Carney refers to Republican Terence Flynn, nominated by President Obama almost a year ago.
Professor Richard Epstein believes that the Constitution provides no basis for intra-session recess appointments as have been made increasingly by the last several Presidents of both parties:
One major design feature of separation of powers and checks and balances both is to curb excessive strategic behavior. The right reading on recess appointments avoids the unprincipled game-playing that has been tolerated for far too long. I would hope that one of the many people who challenges this particular appointment also challenges the interpretation commonly given to the language of Article II, Section 3.
Political Science Professor Sarah Binder of GWU, however, cites that very history to suggest that at least the appointment of Richard Cordray to the CFPB was simply "an aggressive use of executive power in face of the opposition’s foot-dragging over confirming a nominee to the CFPB." She dismisses the notion that the "pro forma session" precludes the President's actions, while properly identifying the crux of the brewing constitutional issue:
The Constitution doesn’t define what constitutes a valid recess for the purpose of the president’s proper exercise of the recess appointment power, leaving it open to interpretation.
In today's Washington Post, former Attorney General Edwin Meese and former DOJ lawyer Todd Gaziano make clear their view that the ability to make recess appointments is secondary to the constitutional issue of whether the President may declare the Congress in recess:
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 during a supposedly “pro forma” session on Dec. 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.”
As the lawyers line up on all sides, and we head into the thick of the 2012 political season, do not expect this issue to become any less complicated or less prominently debated any time soon.
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2011 was the most dynamic year in labor law in quite some time. Fueling many of the changes last year were the impending departures of National Labor Relations Board Chairman Wilma Liebman and Member Craig Becker. With no certainty as to when Liebman or Becker might be properly replaced, the Board acted aggressively while it still held a pro-labor majority and a quorum. In addition to the Board’s activity, the Acting General Counsel pursued an expansive agenda. In response to these efforts, Republican opposition in Congress attempted to rein the Board in via additional oversight and legislative efforts that failed to gain much traction.
