@LRToday Morning Round-Up: December 5, 2012
Rep. Kline Seeks NLRB Response: Bloomberg BNA ($) reports that House Education and the Workforce Committee Chairman John Kline (R-Minn.) last week asked the National Labor Relations Board to respond to an NLRB inspector general report. The inspector general found that several agency employees engaged in prohibited ex parte communications when they referred to the substance of a pending unfair labor practice complaint against Boeing Co. in April 2011 emails addressed to a list of agency officials, including then-Chairman Wilma Liebman.
Berry found that including references to the merits of the complaint in messages that were sent to Liebman technically “infringed upon” the Sunshine Act and NLRB regulations, which prohibit ex parte communications with board members, but the inspector general said the communications to the board member were inadvertent and were not intended to influence board decisionmaking in the case.
Berry concluded there was no basis for any finding of employee misconduct, but he recommended to NLRB Chairman Mark Gaston Pearce and Acting General Counsel Lafe E. Solomon “the Agency's public affairs activities could benefit from more clearly defined policies and procedures.”
Recess Appointments: The Wall Street Journal has an editorial piece criticizing President Obama's recess appointments to the National Labor Relations Board.
Both parties in Congress play politics with confirmations, and this current row began when Senate Democrats blocked some of George W. Bush's nominees. Mr. Bush retaliated with recess appointments, and Majority Leader Harry Reid responded by almost never going into recess. But Mr. Bush, the supposedly Imperial President, never tried what Mr. Obama did in redefining what constitutes a legitimate Senate recess.
On this as on so much else, Mr. Obama is exceeding his constitutional authority. If Mr. Obama gets his way, he'll have more or less vitiated the Senate's advice and consent power. He could presumably make recess appointments every weekend, or during lunch.
Meanwhile, the Huffington Post's The Blog carries a piece by Victor Williams advocating that courts should not consider recess appointment challenges because they involve "nonjusticiable political questions."
Building on the reasoned January 2012 arguments of White House Counsel Kathryn Ruemmler and the Justice Department's Office of Legal Counsel, the government's briefs met and defeated every argument against the president's recess appointment authority. In each circuit, the government briefs clearly explained that the NLRB commissions were signed by the president during a twenty-day Senate break (from January 3rd through 23rd). During the break, the Senate conducted no business and considered no communications from the president. Just as I have argued here and elsewhere, the seconds-long pro forma sessions held every three days were embarrassing faux sessions lacking legal or constitutional significance.
The government surprisingly neglected, however, to argue the stronger jurisdictional defense that no federal court should consider the merits of the challenges as they each raise a nonjusticiable political question. It is a principle of conservative jurisprudence that the federal courts do not have jurisdiction to interfere with issues which the Constitution's text has committed to a coordinate political branch. At each of the four circuit courts, I tendered Amicus Briefs supporting the NLRB, raising and arguing the political question defense. The text, drafting, and ratification history of the Recess Appointment Clause prove that the Executive alone has final authority over term appointments.
NHL Players, Owners to Meet Again Today: Charles Curtis of NJ.com writes that there appears to have been some progress made during yesterday's meetings between NHL owners and players, with some calling it "the best day we've had."
Talks will restart at 9 a.m. this morning with the same group of 18 players and six owners, according to NHL.com's Dan Rosen, who also said the "plan is to work around" the NHL's Board of Governors meeting that's set to take place at 11 a.m.
The difference-makers were reportedly big names in the Penguins organization, including owner Ron Burkle and star forward Sidney Crosby. "Burkle over the past couple of weeks had conversed with Sidney Crosby's agent, Pat Brisson, and fellow Penguins owner Mario Lemieux and to some degree Crosby, as well, as the group tried to find common ground among the obvious, divisive issues between both sides of the labor impasse," ESPN's Pierre LeBrun reported.
