It’s been roughly three months since a panel on the U.S. Court of Appeals for the D.C. Circuit ruled that three putative “recess” appointments union-label President Barack Obama had made to the powerful, five-member National Labor Relations Board (NLRB) in January 2012 were unconstitutional and invalid. Echoing arguments a National Right to Work Legal Defense Foundation had recently presented to another federal court, the three-judge D.C. Circuit panel found that the President had exceeded his constitutional authority for several reasons, including the fact that the Senate was not actually in recess when the so-called “recess” appointments were made.
Unfortunately, ex-union lawyer and rabid forced-unionism supporter Mark Pearce, whom the President appointed to the NLRB in 2010 and elevated to the NLRB chairmanship in 2011, is eager to continue business as usual despite the federal court’s finding that he does not have a legal quorum to work with. Unless and until the U.S. Supreme Court upholds the D.C. Circuit ruling, says Mr. Pearce, he will more or less ignore it.
Last week pro-Right to Work Republicans in the U.S. House pushed through legislation to prevent the NLRB from issuing decisions or making rules until it has a licit quorum, but pro-forced unionism Senate Democrat Majority Leader Harry Reid (D-Nev.) is unlikely even to bring this measure up for consideration in his chamber.
However, the GOP Senate minority can, if it acts with unity and determination, force the Obama Administration at last to heed the D.C. Circuit decision by blocking Mr. Pearce’s nomination for a second term and all other pending NLRB nominations. Mr. Pearce’s current term expires this August. After that, even if the illegal “recess” appointees remain in place, there will be no NLRB quorum without new members being added.
In a Washington Times article on Friday, Senate Minority Leader Mitch McConnell (R-Ky.) appeared to take a tough stand on the NLRB. Right to Work supporters are hoping Mr. McConnell means it and has the rest of the GOP Senate caucus behind him:
Senate Republicans are expected to continue to block many of the president’s NLRB nominees. And the party leaders are demanding two disputed recess appointments still on the board must go.
“At a minimum, the president needs to send two new Democrat nominees to replace the two who were unconstitutionally appointed,” said Senate Minority Leader Mitch McConnell, Kentucky Republican. . . .
“[And] [t]he Senate should give [Mr. Pearce‘s] nomination additional scrutiny given his decision to continue purporting to exercise government power, despite the circuit court’s ruling that he does not lawfully possess it[.]”
GOP hoping to hold National Labor Relations Board in limbo