A picture of Senator Mike Johanns
Mike J.
Former Republican NE
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    Recess Appointments

    by Former Senator Mike Johanns

    Posted on 2013-01-30

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    JOHANNS. Madam President, I rise today, first of all, to say thank you to Senator Barrasso and Senator Alexander for speaking so forcefully on this issue. All of us in this body are elected officials and we take an oath. In that oath, we raise our right hand and we promise our Nation that we will uphold the Constitution of the United States, this very sacred document that has so soundly guided our great country from one decade to another, one century to another, one generation to another.

    In fact, many of my colleagues in Congress took that oath earlier this month. Just 10 days ago, President Obama took the Presidential oath of office with great pomp and circumstance. We were all on the platform with him. He promised the Nation that he would preserve and defend the Constitution of the United States. But I fear that now what we are seeing is a flaunting of that very document.

    You see, the DC Court of Appeals ruled that the President violated the Constitution with his appointment of three members to the National Labor Relations Board. I read the opinion. I saw no other solution than to ask these individuals to leave. The truth of the matter is they are not constitutionally there and need to leave.

    This request was not about a personal preference or an attitude about any one individual. It was not about their qualifications. It was about the oath of office we take. And that oath of office says we will uphold the Constitution. The NLRB appointments were unconstitutional because the President only has the power to bypass our advice-and-consent role here in the Senate under the language of the Constitution. The court unequivocally found that the appointments were made last January while the Senate was not in recess, and were therefore void. Therefore, the President could not use the recess appointments clause of the Constitution to appoint these individuals. The ruling correctly concludes: ``Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers.'' The separation of powers is a critical safeguard to ensure that one branch of government does not overstep the other. The court goes on to say that allowing these nominations to stand ``would wholly defeat the purpose of the Framers in the careful separation of powers.'' Additionally, because these appointments were unconstitutional, the board lacked the quorum necessary to make decisions over the past year. This calls into question over 200 rulings of the board since last January. I personally believe that there is no doubt, if they are not constitutionally there, if they are there violating the Constitution, then all of their rulings, all of their regulations, all of their actions as a board are invalid and void.

    That is why I wrote last Friday to the Government Accountability Office asking them to report to us every single decision they had made that was in excess of their powers to be there. You would think it would be common sense that the board would suspend all further action. You know, as a former member of the Cabinet, it never occurred to me that I had the right to ignore court decisions. I cannot imagine. The Chairman of the NLRB said this, ``The board respectfully disagrees with the decision.'' The Chairman indicates they will continue to conduct business as usual, even though a unanimous appeals court has deemed the appointments of all but one member of the board to be unconstitutional. I find their action absolutely appalling. Decisions by the NLRB are felt across the country.

    It is not fair for the Board to say to the court: Go pound sand, which is exactly what they are telling this court. It is already awful that 200 litigants now have to go through the time and expense to appeal their rulings. Instead of continuing business as usual and issuing more bogus rulings, the Board should recognize that it is time to leave and to honor the Constitution.

    I will wrap up with this. The D.C. appeals court ruling was a victory for our system of government. I believe it was a victory for the Constitution. It ensures that no one, including the President of the United States, is above the Constitution. I simply ask the NLRB, its members who were unconstitutionally appointed, to recognize the sanctity of our Constitution and vacate their offices immediately. Leave. Let us in the Senate have the powers granted to us by the U.S. Constitution to offer advice and consent to the President of the United States.

    I yield the floor.

    The ACTING PRESIDENT pro tempore. The Senator from New York.

    (The remarks of Mrs. Gillibrand pertaining to the introduction of S. 179 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'') ____________________

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