Speeches & Floor Statements

Floor speech: NLRB nominees and protecting constitutional checks and balances

Posted on July 30, 2013

        This week the Senate is voting on five of the president's nominations for membership on the National Labor Relations Board.  I expect all five to receive up-or-down votes, as they generally do, and I expect all five to be confirmed.  The board will then have a full complement, with a Democratic majority of three and two Republican members. 

            I would like to review for a moment what has happened and how we got to this spot, because it is an important moment in the history of our ability as a country to maintain the checks and balances and certain separations of power among the various branches of government -- and especially to restrain the executive, which has been an important part of our country's history.

            In January 2012 the president nominated two individuals to be members of the National Labor Relations Board using his recess-appointment power.  He has that power in the Constitution.  The only problem was that the Senate wasn't in recess -- at least that was our view.  The Senate was in a three-day pro forma session.  A three-day pro forma session is a device that was employed by Senator Reid, the distinguished majority leader, when Bush was president, and he did it to keep President Bush from using his recess-appointment power when the Senate was in recess. 

            Most of our presidents have chafed under the restraints we have placed upon our executive.  President Bush didn't like that, but he respected it, and President Bush never made recess appointments while the Senate was in session.  But President Obama did -- on January 4, 2012.  Senate Republicans objected strongly to that.  After a great deal of discussion, we decided to support a lawsuit challenging the appointments.  That lawsuit went before the DC Circuit Court of Appeals, and the Circuit Court of Appeals agreed with our position and said in effect that the president could not make a recess appointment when the Senate itself had determined it was in session. 

            Since then there have been two other decisions by other federal courts of appeals that have said what the president did on January 4, 2012, was unconstitutional.  The case will come before the Supreme Court this next term.  No one knows what decision the Supreme Court will make, but my sense would be that the Supreme Court will say to this president, or to any president that, Mr. President, you can't use your constitutional power to make a recess appointment at a time when the Senate is not in recess.

            I said earlier that presidents have chafed under these restraints on the executive branch.  That has been true ever since the days of George Washington.  George Washington imposed his own modesty and restraint upon the American character when he resigned his commission after the Revolutionary War, when he stepped down after two terms as president and went back to Mount Vernon, when he asked to be called Mr. President instead of Your Excellency.  Ever since then we have had many strong presidents.  They haven't all liked the idea that Washington also helped write a constitution that created a congress and a bill of rights, and the whole purpose of that was to restrain the executive.  After all, our revolution was against a king, and most of our Founders -- not all of them, but the majority of the drafters of the Constitution -- didn't want a king of the United States, they wanted a president of the United States.

            One of the most important checks upon the power of the executive is the Senate's power to advise and consent, the power to review.  About 1,000 presidential nominations come to us, and it takes a while to confirm them.  Sometimes it takes longer than the nominees think it should.  I have repeated many times on this floor that when the first President Bush nominated me to be Education Secretary and the Senator from Ohio held up my nomination for 3 months, I didn't think that was such a good idea, but the Senate had the power to do it because the Constitution restrains the executive.

            Unfortunately, this president didn't seem to read that chapter in American history, because we have seen during this president's time repeated efforts to circumvent the constitutional checks on the Executive. 

            This administration has appointed more czars than the Romanovs had.  That is the way you get around the nomination process.  This administration's excellent education secretary has used a simple waiver authority in effect to create a national school board.  When Congress says we don't want to appropriate money to implement Obamacare, the health and human services secretary says:  Well, if Congress won't do it, I will do it anyway; I will just go out and raise private money and do it.  Then we have recess appointments being made when the Senate is not in recess.  That is unconstitutional.  If that could happen, the Senate could adjourn for lunch and come back and we would have a new Supreme Court Justice because the president said we were in recess.

            So what is happening this week with these National Labor Relations Board nominees has a special significance in our constitutional history, because not only did Republicans support a lawsuit challenging the appointments -- which we are winning and the case has been won in two other federal courts -- but the president, after much discussion, has withdrawn his two unconstitutionally appointed nominees. 

            I suggested that he do this in May when we had a markup of the five nominees the president sent.  I voted for three -- the Democratic chairman and the two Republicans -- and I voted against the two who were unconstitutionally appointed.  They were well-qualified people.  That wasn't the issue.  The issue was that the Senate needed a way to express its objection to this unconstitutional action by the executive. 

            I suggested that what the president should do is withdraw those two nominees and send us two new ones in the normal process -- people who had not stayed on after a federal court decided they were unconstitutionally there.  These two unconstitutionally appointed nominees have participated in more than 1,000 cases.  These cases are all subject to being vacated because there was no constitutional quorum. 

            It leaves quite a mess in our labor laws.  But the president withdrew those two and now we are, this week, doing what the Senate normally does.  We are considering in the normal process his new nominees.

            I am voting, as I said, for the two Republicans and the chairman.  The chairman was not unconstitutionally appointed.  He did not continue to serve as an unconstitutionally appointed person, since he was not so appointed, so I voted for him in committee.  I do not agree with the chairman and his view of labor laws, but I will have to take that up during the next election.  Elections have consequences, and when we elect the president of the United States, he normally appoints people who agree with him.

            I am also voting for having an up-or-down vote.  We almost always do that with the president's nominees.  There have only been a few times in our history when we have not.  We have never failed to have an up-or-down vote on a Supreme Court Justice after they have come to the floor.  We have never failed to have an up-or-down vote on a district court judge after they have come to the floor; the same in terms of circuit courts.  We never did, until Democrats started filibustering President Bush's judges about 10 years ago when I came to the Senate.  We all know that story.

            But normally we have an up-or-down vote, and we will be doing that this week on the president's five nominees.  I am voting against two of the nominees when that up-or-down vote comes, and I wish to explain why. 

   One is Mr. Hirozawa and the other is Ms. Schiffer.  Both of them have excellent legal backgrounds.  But the problem is I am not persuaded -- I hope I will be proven wrong -- that they will be able to transfer their positions of advocacy to positions of adjudication; that they can be impartial when employers come before them. 

            Employers as well as employees have a right, when they come before the National Labor Relations Board, to expect that all five members, whether Republicans or Democrats, from whatever background they might have, will look at the case and decide it in an impartial way.  It may be possible that Mr. Hirozawa and Ms. Schiffer can do that, but I am not persuaded that is true, and so while I am voting that they have up-or-down votes, I am not voting for them.

            The president has nominated to the board three different individuals who were employed directly by major labor unions.  The first was Craig Becker, who was counsel for two unions, and whose nomination was rejected by a bipartisan vote in 2010.  The second was Mr. Griffin.  The third is Ms. Schiffer. 

            I asked Ms. Schiffer at her hearing if she could remember other examples of an administration stocking the National Labor Relations Board with organized labor employees and she could not think of examples and I could not either.  Over the last several years, the National Labor Relations Board seems to have veered away from impartiality.  Instead of preserving a level playing field and protecting the carefully balanced rights of all parties, it has shown favoritism toward organized labor leadership and very little interest in the rights of individual employers or individual employees who want to exercise their rights not to join a union.

            In fairness, I have to admit this politicization of the National Labor Relations Board has occurred both under Republican and Democratic administrations, but I think appointing a person directly from a high-level job within a major labor union is not an example of trying to move away from that trend.

            The trend is causing confusion.  One labor law professor at a nationally recognized law school recently said she cannot even use her labor law textbook anymore.  She has to resort to handing out NLRB decisions to explain the law because they are changing it so much.  The NLRB has ventured into rulemaking with two new efforts, both of which have been stalled by the federal courts. 

            In August 2011, the board issued a new rule requiring employers to post a biased employee rights poster in the workplace and making it an unfair labor practice to fail to do so.  Two separate federal courts have struck down the rule because it exceeded statutory authority.

            In December 2011, the board issued a new rule shortening the time in which a union election is held, otherwise known as the ambush elections rule.  The DC Circuit Court struck down this rule on the grounds it lacked a quorum, and the NLRB is appealing the decision. 

            So far, this administration's NLRB has sought to change the rules for determining bargaining units, the process for certifying a representation election, the legal obligation of employers to withhold dues from employees' paychecks, even when there is no valid collective bargaining agreement in place, the validity of arbitration provisions in employment contracts, the legality of numerous well-intentioned employee handbook provisions, the rules governing employee discipline when there is no valid collective bargaining agreement in place, the rules governing the confidentiality of employee witness statements given during a legitimate investigation, the policy against forcing nonunion member employees to pay for union lobbying expenses, the rules governing employers' rights to limit access to their property, and attempting to create an entirely new employer obligation and unfair labor practice through the poster requirement struck down by multiple federal appellate courts.

            The effect of all of these changes seems to me to tilt the playing field in favor of organized labor instead of impartiality, which is the directive of the statute.  So fairness and impartiality is what I am looking for in any NLRB nominee.  These two nominees do not pass this test.  That is why I plan to oppose their nominations.

            But the most important message from this week's debate is this:  The Senate is saying, not just to this president but to any president, Republican and Democrat, that you may not abuse your constitutional power of recess appointments by making appointments when the Senate itself determines it is not in recess.  To do so is an affront to the separation of powers.  It undermines checks and balances that were placed upon the executive at the beginning of our country as a way of preserving our liberties.  That is an important step in the history of constitutional law in this country, and I am glad to see it has been done in this way.

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