US Senate Committee on Health, Education, Labor, & Pensions

Alexander: Supreme Court Has “Opportunity to Guard Against the Dangers of an Imperial Presidency”

Says Obama made unconstitutional “recess” appointments while Senate was in session; board’s “invalid decisions” open to legal challenge

Friday, January 10, 2014Liz Wolgemuth 202-228-4729

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“One of the Senate’s most important roles in our system of checks and balances is its constitutional power of advice and consent on presidential nominees, and the Senate decides when it is in session – not the president.”– Lamar Alexander

WASHINGTON, Jan. 10 – U.S. Senator Lamar Alexander (R-Tenn.) today released the following statement in advance of the U.S. Supreme Court hearing oral arguments on whether President Obama unconstitutionally appointed nominees to the National Labor Relations Board by making “recess” appointments while the Senate was in session:

“Three federal circuit courts of appeals have already ruled that the president violated the Constitution when he made so-called recess appointments while the Senate was in session, and now the U.S. Supreme Court has an opportunity to guard against the dangers of an imperial presidency. One of the Senate’s most important roles in our system of checks and balances is its constitutional power of advice and consent on presidential nominees, and the Senate decides when it is in session – not the president.”

President Obama first appointed Richard Griffin, Jr., Sharon Block, and Terence Flynn to the National Labor Relations Board in January of 2012, calling them “recess appointments” even though the Senate was not in recess, but rather in a pro forma session. Pro forma sessions were first used by Senate Democrats to deny President George W. Bush the ability to make recess appointments. In January of 2013, the U.S. Circuit Court of Appeals for the District of Columbia ruled that President Obama’s appointments were unconstitutional.

The president subsequently submitted new nominees who have since been confirmed by the Senate, but not before the NLRB made decisions with its invalid quorum. Alexander continued, “By failing to leave when their appointments were ruled unconstitutional, the president’s nominees invited legal challenges to each of the board’s invalid decisions.”

In May of 2013, Alexander joined Senate Republicans in submitting a “friend of the court” briefing urging the U.S. Supreme Court to rule these appointments to the NLRB unconstitutional. He also introduced legislation in the Senate– the Preventing Greater Uncertainty in Labor-Management Relations Act – that would have prohibited the board from taking any action that requires a quorum until board members had been confirmed by the Senate.

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