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

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Alexander: “Not a Single Cent” Should Go to Enforce Invalid NLRB Decisions

Introduces amendment with 17 cosponsors to defund decisions and regulations made by unconstitutional NLRB “quorum”

Thursday, March 21, 2013Liz Wolgemuth 202-228-4729

Washington, D.C., March 21 – U.S. Senator Lamar Alexander (R-Tenn.), the Ranking Member of the Senate Health, Education, Labor and Pensions Committee, today offered an amendment to defund the enforcement of any decisions or regulations made by an invalid National Labor Relations Board (NLRB) “quorum” that includes individuals whose presence at the board was ruled by a federal court to be unconstitutional.

Alexander said: “The NLRB has just one member today—just one Senate-confirmed, constitutional member—so it has no quorum. Not a single cent should go to enforce or fund any of the invalid decisions made by a board that counts as members two unconstitutionally ‘appointed’ individuals.”

On February 13, Alexander called on Sharon Block and Richard Griffin to “leave the board,” after the U.S. Court of Appeals for the District of Columbia in January ruled their appointments to the NLRB by President Obama during a so-called “recess” session of the United States Senate were unconstitutional. 

The amendment is cosponsored by 17 Republican senators, including Sen. Richard Burr (R-N.C.), John Cornyn (R-Texas), Jeff Flake (R-Ariz.), James Inhofe (R-Okla.), Johnny Isakson (R-Ga.), James Risch (R-Idaho), Mike Enzi (R-Wy.), Lindsey Graham (R-S.C.), Mark Kirk (R-IL), Thad Cochran (R- Miss) and John Barrasso (R-Wy), Tom Coburn (R-Okla.), Kelly Ayotte (R-N.H.), Tim Scott (R-S.C.), John Thune (R-S.D.), Bob Corker (R-Tenn.), and Susan Collins (R-Maine).

Since January’s federal court ruling that the alleged appointments were invalid, the Board has issued 30 published decisions and 62 unpublished decisions and orders. 

The purpose of the amendment is to prevent funding for the enforcement of decisions and regulations issued by a board majority whose quorum was constituted by invalid recess appointments.  It would apply to any case or regulation in which invalidly recess-appointed “members” made up the required three member quorum.  As a matter of law, such a panel lacks the necessary quorum to adjudicate cases.

The NRLB has traditionally made major policy changes and interpretations only with the affirmative votes of at least three Board Members, typically from a full five-member board.  Yet, even with unconstitutionally recess-appointed Board Members, the Board continues to issue decisions overruling well-established precedent and replacing it with new policy that is favored by the Administration’s supporters. 

When the president made the so-called recess appointments in January 2012, Alexander made a speech on the floor of the Senate, saying: “The Administration has shown disregard for possibly the best-known and most important role of the Senate – its power of advice and consent of executive and judicial nominations as outlined in Article 2, Section 2, of the Constitution.”

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