Under Article II, Section 2 of the U.S. Constitution, the President has the power to appoint “officers of the United States,” but only “by and with the advice and consent of the Senate.”
The Constitution makes it clear that only in cases when “vacancies . . . happen during recesses of the Senate” may the President make temporary “recess” appointments to offices that normally require confirmation by Congress’s upper chamber.
Unfortunately, in his eagerness to please union officials Inside the D.C. Beltway, a tiny but crucial constituency for his re-election bid this year, Democratic President Barack Obama is now seeking to render the Constitution’s “advice and consent” requirement for executive appointments effectively meaningless.
Early this January, the Senate was not in recess. For several weeks starting last December 20, the Senate was instead in a “pro forma” session during which it did not meet every day, but did periodically conduct business under “unanimous consent” agreements.
No one can reasonably argue that this “pro forma” session was tantamount to a recess. Article I, Section 5 of the Constitution states that neither the House nor the Senate may over the course of a Congress “adjourn for more than three days” without “the consent of the other.”
A La Humpty Dumpty, Mr. Obama Insists ‘Recess’ Means Whatever He Says It Means
As syndicated columnist Michael Barone has explained: “The House did not consent to the adjournment of the Senate this year, so there is no recess, and hence no constitutional authority to make recess appointments.”
Defiantly ignoring all of the above, the President made three recess appointments on January 4 to the powerful, five-member National Labor Relations Board (NLRB) — even though the Senate was manifestly not in recess.
Mr. Obama and his Justice Department have attempted to justify this move by effectively asserting that it is the President’s prerogative to declare that the Senate is in recess at any moment when the chamber is not actually conducting business.
The constitutional definition of “recess” cannot be used to restrict the President’s appointment power, claim Mr. Obama et al. A la Humpty Dumpty as envisioned in Lewis Carroll’s Through the Looking Glass, the Obama team insists “recess” means just what they choose it to mean, “neither more nor less.”
Top union bosses publicly egged on the White House to embrace this extraordinary and unprecedented view of executive power because they are relying heavily on NLRB activism to help them corral hundreds of thousands, if not millions, of additional workers into unions every year.
Two 2012 Recess Appointees Have Been Professional Forced-Unionism Advocates
Last month, to Big Labor’s alarm, the NLRB stood to become temporarily toothless, with three of its five seats vacant. As the U.S. Supreme Court stated in New Process Steel, the NLRB may not issue valid decisions without a three-member quorum.
If union kingpins’ goal had been merely to keep the NLRB functioning this year, Mr. Obama could easily have satisfied them without breaking the law.
At Mr. Obama’s request, the Senate, in which after all union-label Democrats hold a 53-seat majority, would have quickly approved a pro-forced unionism package of nominees as long as they didn’t appear to be too radical. And a filibuster of any candidate with “mainstream” credibility would be unlikely to succeed.
But AFL-CIO President Richard Trumka and other union bigwigs demand far more from Mr. Obama than a functioning NLRB that will protect the extraordinary statutory privileges Big Labor already enjoys, but not try to rewrite federal law so as to greatly intensify its pro-forced unionism bias.
“The only way President Obama could satisfy the union brass was to make illegal NLRB appointments of nominees with such extreme track records they probably couldn’t have been confirmed by the Senate,” charged Mark Mix, president of the National Right to Work Committee.
Indeed, the resumés of two of the recess appointees Mr. Obama named last month include years of employment as professional advocates of compulsory unionism.
One of the new NLRB members, Sharon Block, has over the past couple of years been employed in the Obama Labor Department as deputy assistant secretary for congressional affairs. Ms. Block has reported directly to Labor Secretary Hilda Solis, one of the most rabid proponents of forced unionism in Washington, D.C.
Previously, Ms. Block helped lead the charge for enactment of “card check” forced-unionism legislation as senior labor and employment council for the Senate HELP Committee. At that time, Ms. Block worked directly for dyed-in-the-wool Big Labor partisan Sen. Ted Kennedy (D-Mass.), who passed away in 2009.
Employers May Be Forced to Hand Worker Phone Numbers, E-Mail Addresses to Union Dons
The other new NLRB appointee, Richard Griffin, was at the time of his selection employed as the top lawyer for the International Union of Operating Engineers (IUOE), notorious for its corruption- and violence-ridden locals in the Northeast.
On the board, Ms. Block and Mr. Griffin are almost certain to be soul mates of Obama-appointed Chairman Mark Pearce, another ex-union lawyer.
Over the next few months, unless they are stopped by Congress or the federal court system, Mr. Pearce, Ms. Block, and Mr. Griffin are poised as a three-member NLRB majority to impose sweeping changes to the current procedures under which Big Labor may obtain monopoly-bargaining power over workers.
Among the harmful proposals the NLRB is reportedly considering are new rules mandating that the employer hand over employee phone numbers and e-mail addresses to union organizers at the outset of each certification campaign.
“Current NLRB rules already seriously infringe on employees’ privacy by requiring employers to hand over their names and their physical addresses to union officials,” said Mr. Mix.
“But the new scheme Chairman Pearce is pushing for would expose employees who don’t sign a union card or promise to vote for a union to even more intense Big Labor intimidation.”
On January 13, attorneys for the National Right to Work Committee’s sister organization, the National Right to Work Legal Defense Foundation, filed a motion in federal court challenging the purported recess appointments to the NLRB President Obama had made nine days earlier.
The Foundation motion asked a federal judge to rule on the constitutionality of all three appointees.
“President Obama has already shown time and again that he is willing to abuse his executive authority to help Big Labor dragoon more workers into forced-dues-paying ranks,” said Mr. Mix, who is president of the Foundation as well as the Committee.
“Now Mr. Obama is jeopardizing the very constitutional balance of our country in order to pay off his union benefactors.”
Committee Will Consider ‘All Appropriate Means’ to Protect Independent Employees
Mr. Mix vowed that, even as the Foundation pursued its legal efforts, the Committee would work closely with Capitol Hill allies to craft one or more measures to halt the current illicitly constituted Obama NLRB in it tracks.
“Before we can pass federal forced-dues repeal and other much needed labor law reforms, we have to stop the union hierarchy from seizing even more monopolistic power over American business employees and employers,” Mr. Mix warned.
“The Committee is now prepared to consider all appropriate means, including both a congressional cut-off of funds for implementation of the NLRB’s proposed overhaul of union certification rules and defunding the NLRB entirely, to protect independent employees and firms.”