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

Alexander Opposes Nominees to NLRB Who Remained on Board After Court Found Their Appointments Unconstitutional

Says continued decision-making by nominees Sharon Block and Richard Griffin after federal court ruling reveals “a troubling lack of respect for the Constitution, the separation of powers and the Senate’s constitutional role to advice and consent”

Wednesday, May 22, 2013Liz Wolgemuth 202-228-4729

Washington, D.C., May 22 – In a Senate Health, Education, Labor and Pensions Committee vote today on the five nominees to the National Labor Relations Board (NLRB), U.S. Senator Lamar Alexander (R-Tenn.), the Ranking Member, opposed the nominations of Sharon Block and Richard Griffin, saying “they have continued to serve, even though the United States Court of Appeals for the District of Columbia has said their service is constitutionally invalid.”

Alexander said: “I oppose the nominations of Sharon Block and Richard Griffin. I don’t doubt that these two individuals are qualified nominees. The problem is, the president appointed them as so-called recess appointments during a time when the Senate wasn’t in recess … This is a matter of principle. By recess-appointing NLRB members at a time when the Senate was actually in session, the president has shown a troubling disrespect for the Constitution, and the two members who continued to serve after the Appellate Court, which hears most NLRB cases, decided that they were unconstitutionally appointed, shows that same lack of respect.”

Alexander continued: “I think we all agree that we’d like to see a functioning board, and a full board. We don’t have that now. We have an invalid board, according to two federal appellate courts. And two of the members who are unconstitutionally there have participated in 919 cases already, which are subject to being vacated. 215 came after the Appellate Court’s decision, and they’re continuing to make those decisions.

“The better path would be for them to step aside, since they are invalidly appointed, and for the president to nominate two others, and for us to go forward. I’m going to vote for three nominees today—that’s a quorum—and we can have two more nominees fairly quickly.”

Alexander noted that the Senate’s “power of advice and consent in the Article II as a curb on the executive and the powers reserved for Congress in Article I have traditionally been something that both parties have agreed upon.

“In 2004, Senator Edward Kennedy filed a brief with the Supreme Court concerning the constitutionality of President George W. Bush’s appointment of Judge William Pryor Jr. That was a recess appointment to the 11th Circuit Court of Appeals. It was done during a 10-day intra-session recess.  Senator Kennedy argued, ‘It is absurd to imagine that the Framers drafted the Recess Appointments Clause to provide the President such a power, to be exercised during intra-session Senate breaks lasting a fortnight, or a weekend, or an overnight.’”

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. 

In April, Alexander introduced legislation that would prohibit the NLRB from taking any action that requires a quorum until the board members constituting the quorum have been confirmed by the Senate, the Supreme Court issues a decision on the constitutionality of the appointments to the board made in January 2012, or the first session of the 113th Congress is adjourned.

The full text of the Senator’s statement is below:

I will not support the nominations of Sharon Block and Richard Griffin.

I don’t doubt, as I said at their hearing, that these two individuals are qualified nominees. The problem is, the president appointed them as so-called recess appointments during a time when the Senate wasn’t in recess. And they have continued to serve, even though the United States Court of Appeals for the District of Columbia has said their service is constitutionally invalid. That decision was on January 25th of this year.

Since those constitutionally invalid appointments in January of 2012, these board members have participated in 919 published and unpublished decisions, 215 of which came after the Court’s ruling in January of this year.

These actions reveal a troubling lack of respect for the Constitution, the separation of powers, and the Senate’s constitutional role to advice and consent. 

Now this power of advice and consent in the Article II responsibilities of Congress as a curb on the executive and the powers reserved for Congress in Article I have traditionally been something that both parties have agreed upon.

In 2004, Senator Edward Kennedy filed a brief with the Supreme Court concerning the constitutionality of President George W. Bush’s appointment of Judge William Pryor Jr. That was a recess appointment to the 11th Circuit Court of Appeals. It was done during a 10 day intra-session recess.  Senator Kennedy argued, “It is absurd to imagine that the Framers drafted the Recess Appointments Clause to provide the President such a power, to be exercised during intra-session Senate breaks lasting a fortnight, or a weekend, or an overnight.”

In speaking of President Reagan’s recess appointments, the late Senator Robert Byrd said on the Senate Floor in 1985, “The President's lawyers know full well that the recess appointment clause which appears in the Constitution was not created as a political loophole to thwart the will of the Senate.”

Senator Byrd went on to explain his view of the Recess Clause: “The phrase ‘the recess’ -- again emphasizing the word ‘the’ -- should be borne in mind, and ‘he gave a definition that said in effect, that recess should be when the session expires’ at the end of the session.”

Senator Byrd then introduced a resolution that expresses the sense of the Senate that the exercise of the power to make recess appointments should be confined to a formal termination of a session of the Senate, or to a recess of the Senate, long enough to prevent it from discharging its function of advice and consent. That resolution was supported by many Democratic senators, including Senator Biden, now Vice-President, Senator Kennedy, and many other senior Democrats.

Each decision of this illegally constituted board may be appealed on the grounds that the NLRB has no quorum, and at least 299 of those cases already are being appealed.

The Chairman mentioned an earlier case where the Supreme Court heard a case, and the Supreme Court in that case said that they were wrong to be there, there was no quorum, and it would look to be like that’s a precedent support of the argument that I’m making, because far from providing certainty to employees, employers, and unions, the decision to continue deciding cases is creating severe confusion about the state of the law.

I have two quick examples. In Rhode Island, because they live in a non-right-to-work state, some hospital nurses decided that they didn’t want to be a part of the union, but they still had to have their dues deducted. They objected in 2009 because the money was being used for lobbying efforts that they did not support, but the NLRB decided that they were still required to pay the dues. The nurses challenged that decision of the board, but like everyone else subject to an NLRB ruling from the current board, those nurses will have to wait for justice, and the money is still be deducted.

On the other hand, an Illinois employer terminated a particularly vocal pro-union employee named Wade Waller. The claim was that he was threatening other employees. The NLRB found that many other employees had not been terminated for making similar threats, and ordered that Mr. Waller be reinstated, but because his decision was made by invalidly appointed members, that decision is being appealed and he is still waiting to be reinstated.

There’s one way to solve this problem. The President should withdraw the nominations of Sharon Block and Richard Griffin, and submit two new nominees. If he does so, I will pledge to work with Chairman Harkin to consider the new nominees in a timely manner.

There is one other point that I would like to make. Sometimes our friends on the other side mention a delay by Republicans and before that is mentioned I want to say this. I asked the Congressional Research Service how much delay was going on in the current Senate. They told me on May 16—a few days ago—that President Obama’s Cabinet nominees are still, on average, moving from announcement to confirmation faster than those of President George W. Bush and President Clinton, so no delay there. On judicial nominations, President Obama has had 19 judges confirmed at this point in his second term, whereas President Bush had 4 judges confirmed at this point in his second term. And I checked the backlog of unconfirmed judges. There are only five district judges waiting to be confirmed, three of whom were reported recently. There are only three circuit judge nominations waiting to be confirmed, and the Minority Leader just asked unanimous consent that we vote up or down on the confirmation of a new judge to the District of Columbia Circuit.

Clearly, this is not about delay. This is about principle. Our country’s founders—or at least most of them—didn’t want a king, so they included in the Constitution a Congress and a Bill of Rights to curb executive power. Congress’ exclusive power of the purse and advice and consent are the strongest curbs. The Obama administration is not the first to chafe under those curbs—that’s why I read from Senator Byrd and Senator Kennedy talking about Republican presidents—but it has been among the most flagrant in ignoring the curbs.

To avoid scrutiny by appropriations committees it seems to have created more czars than the Romanoffs. It has propounded far-reaching executive orders on immigration, for example, and used waiver authority in effect to create a national school board. To circumvent the Senate’s constitutional role on advice and consent, we have recess appointments when the Senate is not in recess. Last week, five chairmen and ranking Republicans on congressional committees in both houses asked the Government Accountability Office to find out the facts about whether the Secretary of Health and Human Services is raising funds for a private entity, and then coordinating with an entity, to do something that Congress has refused to authorize, or for which it has refused to appropriate funds. Under the Constitution and under federal laws, the executive branch simply cannot do that.

This is a matter of principle. By recess appointing NLRB members at a time when the Senate was actually in session, the President has shown a troubling disrespect for the Constitution, and the two members who continued to serve after the Appellate Court, which hears most NLRB cases, decided that they were unconstitutionally appointed, shows that same lack of respect.

It is for those reasons that I will not vote for their nominations, but I am glad to support the nominations of Phil Miscimarra, Harry Johnson, and Chairman Mark Pierce. These three nominees are well qualified, and I thank them for their willingness to serve the nation.

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