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Lamar A.
Republican TN

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  • Recess Appointments

    by Senator Lamar Alexander

    Posted on 2013-01-28

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    ALEXANDER. Mr. President, last Friday a three-judge Federal appellate court made an important decision. It said that the President of the United States, President Obama, on January 4, 2012, made some recess appointments when the Senate wasn't in recess. In other words, they were constitutionally invalid.



    The President made four appointments on January 4, 2012--three to the National Labor Relations Board and one to the consumer finance agency. He did it under his so-called recess appointment authority, which is defined in article II of the Constitution.

    But the Court said: No, Mr. President. The Senate wasn't in recess. The only time you can make those appointments is between the annual sessions of Congress, and the Constitution also says that those vacancies to which you appoint have to happen during that recess.

    The Chairman of the National Labor Relations Board made a remarkable response to the order of the Court. The order of the Court, by the way, vacated an important decision the Board made and said the two remaining NLRB members who are still on the Board are unconstitutionally there, so they vacated the order. Instead of recognizing the authority of the Court, the NLRB Chairman said, in effect: I am going to hang up a sign that says ``Open for business. We have important work to do.'' And they are going to keep going despite the fact that the NLRB has made 219 decisions with these two unconstitutionally appointed members since the month of January 2012, all of which, I would say, are invalid because the members who voted on the decisions were unconstitutionally appointed.

    I am here today to call for Sharon Block and Richard Griffin--the two [[Page S303]] members of the National Labor Relations Board who were unconstitutionally appointed by the President according to the Federal appellate court--calling on them to resign their positions and calling on the President of the United States to nominate a full slate of members to the National Labor Relations Board, and then let's do what the Constitution says we are supposed to do.

    The best known authority of this body, the Senate, is likely to be the advice and consent provisions of the Constitution. Article II, section 2: With the advice and consent of the Senate, the President shall appoint Ambassadors and others. There are about 1,100 of those whom the President appoints.

    Two years ago and then just last week, we streamlined the confirmation process a little bit to narrow the focus on the most important appointees and make it easier to get them confirmed. Those are the checks and balances the Constitution meant to establish. They did that so we would have liberty from a tyrannical executive branch, which is what the Founders were worried about. The Court has said the President has exceeded that. Therefore, these two remaining members of the NLRB should resign immediately and pack their bags and go home with our thanks for their hard work, despite the fact that the 219 cases they voted on ought to be vacated and probably will be when someone challenges those cases.

    A new sign needs to go up at the National Labor Relations Board. Take down the sign that says ``Open for business'' and put up a sign that says ``Help wanted. Nominations accepted.'' The three-judge court of appeals did an interesting thing: They actually read the Constitution in its plain English. Here is what the Constitution says: The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate.

    Now, what is the recess of the Senate? Well, let's go back to the beginning of our country and for many years thereafter.

    Sam Houston, Senator Sam Houston of Texas, had to go from Texas to New Orleans, get on a boat, come up the Mississippi River, and then ride a horse and take a stagecoach to get here. It took him weeks--same to go home.

    James K. Polk of Tennessee, Speaker of the House, would take a stagecoach up to Pennsylvania and then follow the road or go on the river up to Pennsylvania and follow the road to the House of Representatives.

    At one time, President Polk, after he became the President, had a vacancy in the Attorney General's Office, and he wrote to some person up in New Hampshire and asked him to take the job. It took 2 or 3 weeks to receive the letter, and it took 2 or 3 weeks to get the answer, and the answer was no.

    In those days, there were long, extended periods in this country between the annual sessions of the Congress, when the Members of Congress were spread all over the country. The Founders anticipated that, and they wisely put into the Constitution a provision that said that during those times, the President may make a recess appointment while the Senate is in recess. And that person may hold the position until the end of the session.

    Well, over the years, that has changed. Various Presidents have tried various ways to fill vacancies during a recess, and that has become something different in the last while. This hasn't been just Democratic Presidents who have done it. Presidents have become frustrated because sometimes Senators don't give their advice and consent. I know about that; I was nominated by President Bush the first to be the Education Secretary, and the Senator from Ohio at the time thought I needed a little examination and held me up for 3 months. Finally, the Senate agreed to my confirmation unanimously.

    But that is what we are for. We are supposed to consider the President's nomination of Senator Kerry to be Secretary of State, as we are. We are supposed to consider the nomination of Senator Hagel as Secretary of Defense. And according to the law, we are supposed to consider the President's nominees for the very important National Labor Relations Board. But what the President did was to make three appointments to the Board the day after we went into our annual session. We went into session on January 3, 2012, and he made these appointments on January 4.

    The court said the Senate was clearly in session--clearly in session. So if the President disagrees with the Senate, if he is afraid he is about to nominate somebody who the Senate won't like, well, then, he had better get somebody the Senate will approve or else he is not going to get that nominee. But the President said: No, I am going to do it my way, so I will try to change this recess appointment and do it in a way that is more extreme than has ever been done before.

    I want to hasten to add there is no excuse here that if the President hadn't acted in this way the Senate might have held up the nomination for too long. Of course, the Senate has that right, if it chooses to do so. But in this case the nominations only arrived 3 weeks before the President made his appointments. So we have a straight-out set of facts here, says the court. According to the Constitution, valid appointments may only be made during the recess between annual sessions of Congress, and these were not. Secondly, it may only be made to a vacancy that occurred during the recess, and two of the three vacancies which we are talking about occurred months before the recess.

    The Chairman of the National Labor Relations Board effectively says ``open for business.'' In fact, the board should not be open for business, because the board only has one member who has been constitutionally appointed and confirmed, unanimously by the Senate. So the board, without a full quorum of three members, which it does not have--two are unconstitutionally appointed--can't issue regulations and can't decide cases, including appeals of decisions of unfair labor practices.

    Let me give an example that might affect the State of Tennessee. We were very concerned last year--I was; Tennesseans were--when a complaint began to make its way through the National Labor Relations Board affecting the Boeing Company and its decision to put a plant in South Carolina. In other words, Boeing, from a State that does not have a right-to-work law, wanted to put a new plant in a State that does have a right-to-work law, and a complaint was filed, which, on the face of it, made it look like as if, in trying to do that, it is prima facie evidence they were violating national labor laws. That is a very expensive delay for the Boeing Company--or any company. Well, that eventually got settled after a lot of expense.

    But let's say we have a small supplier in the State of Illinois, which is not a right-to-work State, that might want to work in Tennessee or Virginia, which are, and someone files a complaint. Do we want a board there that is unconstitutionally placed that might rule that is a prima facie violation of Federal law? To have members of the NLRB who are not confirmed by the U.S. Senate raises the prospect that would undermine the right-to-work law in Tennessee and Virginia and all the other States that have chosen to have one.

    So this has very practical, everyday application in the State of Tennessee.

    But even though the board can't issue regulations or decide cases, the rest of the NLRB can be open for business while the President makes nominations and the Senate considers those nominations under regular order. For example, the NLRB could conduct elections, it could investigate allegations of unfair labor practices, it could issue a complaint, administrative law judges could hold hearings, regional directors can settle cases, the general counsel may seek to enforce orders, and the general counsel could issue enforcement guidance memoranda.

    They are all open for business, but the National Labor Relations Board is not open for business. Its ``open for business'' sign needs to come down, and a new one needs to go up that says: Help wanted. Nominations accepted.

    Finally, there is a larger issue here. At the beginning of last year, I visited Mount Vernon. I mentioned it in the 2 minutes I had at the President's inaugural last week, because it made such an impression on me. I was reminded that the American Revolution was about tyranny by a king. That was the danger. That was what caused people to sacrifice their lives.

    I saw in the National Archives this weekend the oath of allegiance signed [[Page S304]] by George Washington and his troops, which swore allegiance to a country that was not even formed yet--an allegiance that would have caused him to be executed if we had lost the American Revolution. So there was a lot at stake when our country was founded, and so much of it was about liberty and about an ability to resist a king or an imperial leader.

    George Washington himself imposed his own character upon the American character by his modesty and restraint, by his decision to step down as general of the American army. He could have been general for the rest of his life. He made the decision to step down as President of the United States after two terms. He could have been President for the rest of his life. But at the beginning of our country, liberty, to many people, meant avoiding an executive that was too strong, that didn't have proper checks and balances. And our Founders put into our Constitution checks and balances with the court and with the legislature.

    Of course, as we like to point out, article 1 is about the Congress, about the legislature. And as I said earlier, perhaps the best known function the Senate has is the ability to advise and consent. The President may nominate, but those important people--men and women--may not take their offices until they have been confirmed by the Senate.

    This administration, I am sorry to say, has not respected those checks and balances, as I had hoped it would. I would suggest maybe a retreat to Mount Vernon for President Obama and the White House staff. The Obama administration has appointed more czars than the Romanovs. We have always had some czars, such as the drug czars, but they have three dozen--three dozen who aren't subject to the usual restrictions that we have through the appropriations process.

    The most blatant example of the imperial Presidency are the recess appointments at a time when the Senate, according to this court, was not in recess, in order to put into those positions men and women with whom the Senate would not agree. If the President could do what the President did on January 4, 2012, on a regular basis, we might take a recess break for lunch and come back and find we have a new Supreme Court Justice.

    I am here to suggest the right thing to do would be to respect the tradition of checks and balances that is built into our Constitution. It is at work here, because the President took an action, we didn't like it, and the third branch of government has made a decision the President was wrong. The way to go forward is for the two remaining members of the National Labor Relations Board who were appointed unconstitutionally to resign their position and for the President to nominate as rapidly as he can men or women to fill the remaining vacancies on the board. And to the extent the committee on which I am the ranking Republican, which oversees labor matters, has anything to do with that, I will pledge speedy consideration of those nominees.

    Let's get the National Labor Relations Board back in business. But it cannot be open for business today. It cannot be properly open for business today. Those two members should resign their positions and recognize the court has said we still have in America a Constitution that provides checks and balances. So take down the sign that says: Open for business, and put up the sign that says: Help wanted. Nominations accepted.

    Mr. President, I commend my colleagues to read my floor remarks of February 2, 2012, about recess appointments, which I made following the President's so-called recess appointments and following my visit to Mount Vernon.

    I yield the floor, and I suggest the absence of a quorum.

    The ACTING PRESIDENT pro tempore. The clerk will call the roll.

    The legislative clerk proceeded to call the roll.

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