Posted on May 6, 2013
By: Michael Collins
The U.S. Supreme Court may ultimately decide whether President Barack Obamalegally appointed three people to the National Labor Relations Board.
In the meantime, congressional Republicans are moving ahead with legislation that would keep the board in limbo until the legal dispute is resolved.
Leading the charge are two Tennessee Republicans — U.S. Rep. Phil Roe and U.S.Sen. Lamar Alexander.
“This is a constitutional issue for both parties,” said Roe, who chairs the House Subcommittee on Health, Employment, Labor and Pensions.
Roe is the lead sponsor of a bill that requires the labor board to cease all activity requiring a three-member quorum until the legal uncertainty has been resolved. The House passed the bill on April 12 on a 219-209 vote that fell mostly along party lines.
Alexander, the top Republican on the Senate Health, Education, Labor and Pensions Committee, said he is preparing similar legislation in the Senate.
While political fights over presidential nominations are nothing new in hyperpartisan Washington, this time the battle is over the process versus the individuals.
Obama made the NLRB appointments when Congress was not in session in January 2012. The Constitution enables presidents to make temporary appointments when Congress is not in session. Obama, like other presidents before him, chose that route when making the labor board appointments.
A federal appeals court, however, struck down the appointments in February, ruling the president had acted unconstitutionally because the Senate had not really been in recess. At the time the appointments were made, the Senate had been meeting in “pro forma” sessions — brief, perfunctory meetings in which no formal business is conducted.
The labor board has said it intends to appeal the decision to the Supreme Court.
One of the president’s appointees, Terence Flynn, resigned from the labor board last May, before the appeals court ruling called his appointment into question. Alexander has called on the other two — Sharon Block and Richard Griffin — to also step down.
Alexander and Roe say at stake is the Constitution’s system of checks and balances.
But there’s no guarantee the high court will take the case, and, even if it does, a ruling will probably be more than a year away.
“In the meantime,” Alexander said, “the NLRB keeps making decisions with unconstitutionally appointed members.”
In addition to requiring a three-member quorum, Roe’s bill would prohibit the enforcement of any decisions the board has made since Obama’s appointments.
The restrictions on the board’s authority would be lifted once the Supreme Court rules, when the Senate confirms enough appointees to make a three-member quorum, or when the current appointments expire at the end of 2014.
Democrats argue the legislation is nothing but another GOP attempt to muzzle the labor board, which enforces workers’ rights and mediates worker-employee disputes.
Alexander and Roe counter that board members, whose appointments are being litigated, should not be allowed to make decisions that carry out the Obama administration’s labor agenda and have real-life consequences.
For example, Alexander said, Tennessee’s right-to-work law has been vital to the state’s ability to attract the auto industry. But in a 2011 complaint against Boeing, the labor board tried to undermine the right-to-work law in South Carolina, where the jet manufacturer was looking to build a new assembly plant, Alexander said.
Right-to-work laws in other states could come under attack if Obama is allowed to make labor board appointments that are not subject to Senate confirmation, he said.