Speeches & Floor Statements

Floor Speech: "On the President's Unconstitutional Appointments to the NLRB"

January 30, 2013 - January 30, 2013

Last Friday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia issued a decision that basically said the era of recess appointments is over.  The three-judge court unanimously ruled that President Obama, on January 4, 2012, made three recess appointments which were unconstitutional, and, therefore, said the court, these three individuals -- one who is already gone from the NLRB -- so two NLRB individuals who were in the case that was before this court hold their seats unconstitutionally. 

            The Chairman of the National Labor Relations Board nevertheless said, in effect, that the NLRB is open for business.  I respectfully suggest that a different sign should go up -- "help wanted; nominations needed" -- and that the two NLRB members whose recess appointments were unconstitutional should leave the NLRB because the decisions in which they participated -- and there were 219 of them -- cannot be valid if they are challenged, just as this 1 decision was vacated, because since they were unconstitutionally there, the NLRB did not have a quorum, and therefore, when those decisions are challenged, under the ruling of this court, those decisions cannot stand.

They are important decisions.  As the Senator from Wyoming undoubtedly will mention more about, they involved some controversial issues. 

            Several observers have said the court's decision is broad.  In fact, it is a breathtaking decision.  It is a bold decision.  But by all standards, it seems to be the correct decision.  This is why I say that if you take an American history book in one hand and the U.S. Constitution in the other and you read them both at the same time, you see that the Constitution, which was ratified a long time ago -- before 1800 -- has in it article II, section 2, which says that the President may make nominations of a number of people, such as soon-to-be Secretary of State Kerry, who was confirmed yesterday -- a number of people -- but that those nominations require the advice and consent of the Senate. 

            We have done some work here in the Senate over the last 2 years, and we have improved the nomination process.  We have eliminated a number of the nominations that are subject to advice and consent.  We have made it easier for people to move through, and we have expedited a large number of those.  For example, 273 of the 1,100 nominations that require advice and consent can be sent right to the desk by the President, and if a single Senator does not want it to go through the entire process, after the relevant committee gets all the relevant information, the majority leader can just move, after 10 days, to confirm that person.  But if it is a Secretary of State or if it is a Secretary of Defense or if it is a member of the National Labor Relations Board, the Senate has a constitutional responsibility to consider those nominees. 

            I would suspect that the advice and consent role of the Senate is probably our best known power.  It is the title of a book that Allen Drury wrote that came out, I think, in the late 1950s.  Most Americans know about the advice and consent role of the Senate, and they know why we have it.  We have it because our Founders put their necks on the line in a revolution against a King, and they did not want an imperial Presidency.  So they put into place a system of checks and balances, which is being exercised this very moment because of the courts’ decision.

            So as we look back over the history of checks and balances and the imperial Presidency and the importance of making certain we do not have an imperial Presidency, we are reminded the reason we did that was a single word: liberty -- the revulsion by the Founders who created this system and who then made sure our President was a President, not a King.  And George Washington, who exercised great modesty and restraint, impressed into the American character his own modesty and restraint when he asked that he be called "Mr. President," not something more grand, when he retired to Mount Vernon after two terms, when he could have been President of the United States for life. 

            So that is what the Constitution talked about.  It said that for these important positions, the President may nominate, but if the Senate does not confirm them, they cannot serve. 

            There is also a provision toward the end of article II, section 2 about recess appointments.  Here is what the court said when it got out its American history book and began to compare that with the Constitution: 

            So this was written at a time when Senator Sam Houston of Texas had to ride a horse, get on a steamboat, get in a stagecoach, and make his way to Washington over a period of 5 or 6 or 7 weeks, and the same to go home; and when President Polk had a vacancy in 1846 in the Attorney General's Office and wrote a letter to someone in New Hampshire and invited him to take the position and that took 2 or 3 weeks to get the letter, and then in 2 or 3 weeks back came the answer:  No. 

Communication was a little different back then, so it was necessary, for the government to operate, to put into the Constitution that when the Congress, the Senate was home -- which meant all over this big, grand country, before the days of communication and travel -- that during a 4- or 5- or 6-month period, the President could appoint someone to that position during the recess, the Constitution says. 

            The Constitution says, according to the court, that when a vacancy occurs during the recess, the President may make an appointment during that recess.  So the court was talking about only one recess, and that is the one between the annual sessions of Congress -- the one between when we end in 2012 and start in 2013. 

            Since that time, starting right after the Civil War, the President and Congress have been inventing these various ideas about other recesses.  We even got down to the idea where we created having a recess for 3 days and then having a pro forma session to prevent the President from making any, quote, recess appointment during that time.  But what the court has said is that all that does not really matter, that the only recess during which a President may make an appointment is between the end of an annual session and the beginning of the next. 

            I believe the ruling is correct.  I believe it will be affirmed.  I have no idea whether the Supreme Court will affirm it in whole, but surely they will at least say that the Senate itself -- not the President -- will decide when the Senate is in session and when the Senate is in recess, and if they do that, the era of the recess appointment is likely over.  There is no need for a recess appointment in a modern era where the Senate is in session almost all the time.  And the recess appointment has become used by Presidents to get around the checks and balances that are in article II, section 2 of the Constitution that provide liberty for the citizens of this country by avoiding an imperial Presidency. 

            So I call on the NLRB to take down the "open for business" sign and put up one that says "help wanted; nominations accepted."  The NLRB can do a number of things, but the Board cannot as long as it does not have a quorum.  And the two members who are there unconstitutionally should leave their positions immediately, and accept no more pay. 


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