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No Time for Advice and Consent
No Time for Advice and Consent
January 06, 2012
Originally published in The Washington Times
On Wednesday, President Obama infuriated Republicans and threatened to spark a constitutional crisis when he announced he would make four recess appointments during a “pro forma” session of Congress. A pro forma session occurs when Congress “gavels in and gavels out” every three days but is not technically on recess.
The fact that the president recess-appointed four nominees absent an actual recess is outrageous in itself and has drawn well-deserved condemnation. But also troubling is the way in which he made two appointments to the National Labor Relations Board (NLRB).
The last-minute nominations set these two apart from Mr. Obama’s appointment of Richard Cordray to head the Consumer Financial Protection Bureau and his earlier appointment to the NLRB of Terence Flynn. Their nominations were made months ago.
In a press release, Sen. Michael B. Enzi, Wyoming Republican, ranking member of the Senate Health, Education, Labor and Pension (HELP) Committee, stated, “The president has ignored the Senate’s confirmation and vetting process” by appointing Ms. Block and Mr. Griffin.
As Mr. Enzi rightly noted, the president’s submission of the nominations at the last minute made it impossible for the Senate even to begin its vetting process. The process includes a background check to see if the nominees’ taxes are paid, if they are facing any pending civil or criminal investigations and to ensure that they face no conflicts of interest.
Conflicts of interest are of particular concern in this case. Mr. Griffin was appointed directly from his position as general counsel for the International Union of Operating Engineers. He also has served on the board of directors for the Lawyers Coordinating Committee of the AFL-CIO. Other than Mr. Obama’s controversial recess appointment of Craig Becker, no other NLRB member has been appointed directly from the legal staff of a union.
Ms. Block was appointed from a political job as deputy assistant secretary for congressional affairs at the now very union-friendly Department of Labor. Her boss, Secretary of Labor Hilda L. Solis, who has admitted to having a pro-union bias, gave her “a shout-out” when applauding Mr. Obama’s appointment.
Still, the main fight likely will come on the technicality of whether Mr. Obama was within his rights to make the appointments during the pro forma session. On this point, Democratic hypocrisy is appalling.
Senate Democrats routinely blocked George W. Bush’s recess appointments by going into pro forma sessions several times during his second term. Rather than play chicken with the Constitution as our current president is doing, Mr. Bush abided by the will of the Senate.
In 2007, Senate Majority Leader Harry Reid warned Mr. Bush against making recess appointments, saying that he would “keep the Senate in pro forma session to block the president from doing an end run around the Senate and the Constitution.” On Jan. 4, Mr. Reid sang a different tune, praising Mr. Obama’s appointment of Mr. Cordray.
As the president’s Deputy Solicitor General Neal Katyal explained to the Supreme Court in 2010, “[T]he recess appointment power can work in a recess. I think our office has opined the recess has to be longer than three days. And … so, it is potentially available to avert the future crisis … that could take place with respect to the board.”
A December 2011 Congressional Research Service report notes that from the beginning of Ronald Reagan’s presidency to the end of George W. Bush‘s, the shortest recess in which a president made an appointment was 10 days.
The report also references a 1993 Justice Department memorandum issued by then-Attorney General Janet Reno. It implied that a recess of more than three days was needed before the president could issue an appointment. The memo stated that “it might be argued that the Framers did not consider one-, two- and three-day recesses to be constitutionally significant.”
Adding insult to injury, Mr. Obama made the appointments on the first day of the 2012 session. Recess appointments are valid only until the end of the next session of Congress. Therefore, the four appointees can serve until the end of 2013.
If the president wanted to work with Congress but felt the need to fill the vacancies right away, he could have appointed his choices a day earlier, limiting their terms to the end of this year. Instead, Mr. Obama chose to engage in an all-out conflict with Congress while running roughshod over the Constitution’s advice and consent clause.