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Class is in recess

January 12th, 2012  |  Matt Pavich

On January 4, 2012, President Barack Obama wielded his recess appointment power to name three new Members to the NLRB. A firestorm of controversy erupted and while some of the criticism is well-founded, much of it misses what is most important to the story.

First, let’s look at what the critics may have gotten right. One of the immediate responses was that because the President waited until December 15 to nominate Sharon Block and Richard Griffin to the Board, the Senate had virtually no time to consider their qualifications and potential conflicts of interest. This criticism, in my opinion, works on a variety of levels. First, it points out that the nominees have not been fully vetted and it appears as though at least Griffin may have some skeletons in his closet. Reports surfaced today alleging that in his position as General Counsel for the International Union of Operating Engineers, Griffin may have blocked reform rules aimed at cleaning up corrupt locals. There is, undoubtedly, much more to the story, but this allegation would have certainly been explored during confirmation hearings.

Which brings me to another point about the criticism, this time from the left. Why did the President wait until December to nominate Block and Griffin. He surely knew that a confirmation vote on any of his nominees was unlikely, so why wait? If the point was to slide the nominees past public scrutiny, then the President and his team deserve all the condemnation that comes their way. If, however, the delay was due to a White House that often seems unconcerned with labor matters and only recently realized that they were about to face a Board that couldn’t perform its duties, then such a delay was bush league and, again, deserves all the complaints that critics can muster.

While critics of the recess appointments are right to point to the lack of vetting, they completely miss the boat on the nature of the appointments themselves. First, the Recess Appointments Clause does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Critics of the move argue that the Senate never actually entered a recess, because the House never gave its approval. As Representative Sharon Black said after introducing a resolution disapproving of the appointments:

“It’s astounding to me that the president is claiming these are recess appointments and within his authority, when Congress was not in fact in recess. I hope the House considers my resolution as soon as we return to Washington so we can send a message to President Obama.”

Wait, what? If Congress isn’t in recess, then why must the House delay consideration of the resolution until its members “return to Washington?” Because while Congress may not technically be in recess, the only reason it’s not is because the House, fearful of the potential for recess appointments, never gave its approval. The members just left town and have been forcing pro forma sessions in which no work gets done ever since.

Which, cynics would argue, doesn’t make this period all that different than when the Senate is in full session.

The point is that if it’s acceptable for the House to play procedural games to block the President’s powers, it may be acceptable for the President to say that since it’s not doing any work, Congress is indeed in recess.

Regardless of whether one agrees with the notion that a legislative body that leaves and returns without working is in technical recess, no-one could deny that Congressional Republicans have made it their goal to deny the President his choices for the NLRB. Senate Republicans have refused to allow hearings or votes on the President’s last four nominations to the Board, all in the hope that the Board would fall under its three-member quorum and be unable to perform its job of regulating labor-management relations. House Republicans have held hearings exploring whether the Board is in hoc to labor unions and some have introduced legislation to abolish the Board altogether.

They may be justified in their opposition to the Board. They may be correct in their belief that this Board has bent over backwards to favor unions and organized labor. They may be correct that the Board’s rulemaking has been rushed and improperly conducted.

But it’s time to end the bickering. The President has made his appointments. The Board will, barring any quick judicial resolution, operate for the remainder of the President’s term, issuing decisions and making rules. Congress now has an obligation to ensure that the Board does its job properly because that job is nothing less than ensuring harmonious labor relations. And given the state of the economy, that job has never been more important.