[Congressional Record Volume 159, Number 11 (Monday, January 28, 2013)]
[Senate]
[Pages S302-S304]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. ALEXANDER. Mr. President, last Friday a three-judge Federal 
appellate court made an important decision. It said that the President 
of the United States, President Obama, on January 4, 2012, made some 
recess appointments when the Senate wasn't in recess. In other words, 
they were constitutionally invalid.
  The President made four appointments on January 4, 2012--three to the 
National Labor Relations Board and one to the consumer finance agency. 
He did it under his so-called recess appointment authority, which is 
defined in article II of the Constitution.
  But the Court said: No, Mr. President. The Senate wasn't in recess. 
The only time you can make those appointments is between the annual 
sessions of Congress, and the Constitution also says that those 
vacancies to which you appoint have to happen during that recess.
  The Chairman of the National Labor Relations Board made a remarkable 
response to the order of the Court. The order of the Court, by the way, 
vacated an important decision the Board made and said the two remaining 
NLRB members who are still on the Board are unconstitutionally there, 
so they vacated the order. Instead of recognizing the authority of the 
Court, the NLRB Chairman said, in effect: I am going to hang up a sign 
that says ``Open for business. We have important work to do.'' And they 
are going to keep going despite the fact that the NLRB has made 219 
decisions with these two unconstitutionally appointed members since the 
month of January 2012, all of which, I would say, are invalid because 
the members who voted on the decisions were unconstitutionally 
appointed.
  I am here today to call for Sharon Block and Richard Griffin--the two

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members of the National Labor Relations Board who were 
unconstitutionally appointed by the President according to the Federal 
appellate court--calling on them to resign their positions and calling 
on the President of the United States to nominate a full slate of 
members to the National Labor Relations Board, and then let's do what 
the Constitution says we are supposed to do.
  The best known authority of this body, the Senate, is likely to be 
the advice and consent provisions of the Constitution. Article II, 
section 2: With the advice and consent of the Senate, the President 
shall appoint Ambassadors and others. There are about 1,100 of those 
whom the President appoints.
  Two years ago and then just last week, we streamlined the 
confirmation process a little bit to narrow the focus on the most 
important appointees and make it easier to get them confirmed. Those 
are the checks and balances the Constitution meant to establish. They 
did that so we would have liberty from a tyrannical executive branch, 
which is what the Founders were worried about. The Court has said the 
President has exceeded that. Therefore, these two remaining members of 
the NLRB should resign immediately and pack their bags and go home with 
our thanks for their hard work, despite the fact that the 219 cases 
they voted on ought to be vacated and probably will be when someone 
challenges those cases.
  A new sign needs to go up at the National Labor Relations Board. Take 
down the sign that says ``Open for business'' and put up a sign that 
says ``Help wanted. Nominations accepted.''
  The three-judge court of appeals did an interesting thing: They 
actually read the Constitution in its plain English. Here is what the 
Constitution says:

       The President shall have power to fill up all Vacancies 
     that may happen during the Recess of the Senate.

  Now, what is the recess of the Senate? Well, let's go back to the 
beginning of our country and for many years thereafter.
  Sam Houston, Senator Sam Houston of Texas, had to go from Texas to 
New Orleans, get on a boat, come up the Mississippi River, and then 
ride a horse and take a stagecoach to get here. It took him weeks--same 
to go home.
  James K. Polk of Tennessee, Speaker of the House, would take a 
stagecoach up to Pennsylvania and then follow the road or go on the 
river up to Pennsylvania and follow the road to the House of 
Representatives.
  At one time, President Polk, after he became the President, had a 
vacancy in the Attorney General's Office, and he wrote to some person 
up in New Hampshire and asked him to take the job. It took 2 or 3 weeks 
to receive the letter, and it took 2 or 3 weeks to get the answer, and 
the answer was no.
  In those days, there were long, extended periods in this country 
between the annual sessions of the Congress, when the Members of 
Congress were spread all over the country. The Founders anticipated 
that, and they wisely put into the Constitution a provision that said 
that during those times, the President may make a recess appointment 
while the Senate is in recess. And that person may hold the position 
until the end of the session.

  Well, over the years, that has changed. Various Presidents have tried 
various ways to fill vacancies during a recess, and that has become 
something different in the last while. This hasn't been just Democratic 
Presidents who have done it. Presidents have become frustrated because 
sometimes Senators don't give their advice and consent. I know about 
that; I was nominated by President Bush the first to be the Education 
Secretary, and the Senator from Ohio at the time thought I needed a 
little examination and held me up for 3 months. Finally, the Senate 
agreed to my confirmation unanimously.
  But that is what we are for. We are supposed to consider the 
President's nomination of Senator Kerry to be Secretary of State, as we 
are. We are supposed to consider the nomination of Senator Hagel as 
Secretary of Defense. And according to the law, we are supposed to 
consider the President's nominees for the very important National Labor 
Relations Board. But what the President did was to make three 
appointments to the Board the day after we went into our annual 
session. We went into session on January 3, 2012, and he made these 
appointments on January 4.
  The court said the Senate was clearly in session--clearly in session. 
So if the President disagrees with the Senate, if he is afraid he is 
about to nominate somebody who the Senate won't like, well, then, he 
had better get somebody the Senate will approve or else he is not going 
to get that nominee. But the President said: No, I am going to do it my 
way, so I will try to change this recess appointment and do it in a way 
that is more extreme than has ever been done before.
  I want to hasten to add there is no excuse here that if the President 
hadn't acted in this way the Senate might have held up the nomination 
for too long. Of course, the Senate has that right, if it chooses to do 
so. But in this case the nominations only arrived 3 weeks before the 
President made his appointments. So we have a straight-out set of facts 
here, says the court. According to the Constitution, valid appointments 
may only be made during the recess between annual sessions of Congress, 
and these were not. Secondly, it may only be made to a vacancy that 
occurred during the recess, and two of the three vacancies which we are 
talking about occurred months before the recess.
  The Chairman of the National Labor Relations Board effectively says 
``open for business.'' In fact, the board should not be open for 
business, because the board only has one member who has been 
constitutionally appointed and confirmed, unanimously by the Senate. So 
the board, without a full quorum of three members, which it does not 
have--two are unconstitutionally appointed--can't issue regulations and 
can't decide cases, including appeals of decisions of unfair labor 
practices.
  Let me give an example that might affect the State of Tennessee. We 
were very concerned last year--I was; Tennesseans were--when a 
complaint began to make its way through the National Labor Relations 
Board affecting the Boeing Company and its decision to put a plant in 
South Carolina. In other words, Boeing, from a State that does not have 
a right-to-work law, wanted to put a new plant in a State that does 
have a right-to-work law, and a complaint was filed, which, on the face 
of it, made it look like as if, in trying to do that, it is prima facie 
evidence they were violating national labor laws. That is a very 
expensive delay for the Boeing Company--or any company. Well, that 
eventually got settled after a lot of expense.
  But let's say we have a small supplier in the State of Illinois, 
which is not a right-to-work State, that might want to work in 
Tennessee or Virginia, which are, and someone files a complaint. Do we 
want a board there that is unconstitutionally placed that might rule 
that is a prima facie violation of Federal law? To have members of the 
NLRB who are not confirmed by the U.S. Senate raises the prospect that 
would undermine the right-to-work law in Tennessee and Virginia and all 
the other States that have chosen to have one.
  So this has very practical, everyday application in the State of 
Tennessee.
  But even though the board can't issue regulations or decide cases, 
the rest of the NLRB can be open for business while the President makes 
nominations and the Senate considers those nominations under regular 
order. For example, the NLRB could conduct elections, it could 
investigate allegations of unfair labor practices, it could issue a 
complaint, administrative law judges could hold hearings, regional 
directors can settle cases, the general counsel may seek to enforce 
orders, and the general counsel could issue enforcement guidance 
memoranda.
  They are all open for business, but the National Labor Relations 
Board is not open for business. Its ``open for business'' sign needs to 
come down, and a new one needs to go up that says: Help wanted. 
Nominations accepted.
  Finally, there is a larger issue here. At the beginning of last year, 
I visited Mount Vernon. I mentioned it in the 2 minutes I had at the 
President's inaugural last week, because it made such an impression on 
me. I was reminded that the American Revolution was about tyranny by a 
king. That was the danger. That was what caused people to sacrifice 
their lives.

  I saw in the National Archives this weekend the oath of allegiance 
signed

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by George Washington and his troops, which swore allegiance to a 
country that was not even formed yet--an allegiance that would have 
caused him to be executed if we had lost the American Revolution. So 
there was a lot at stake when our country was founded, and so much of 
it was about liberty and about an ability to resist a king or an 
imperial leader.
  George Washington himself imposed his own character upon the American 
character by his modesty and restraint, by his decision to step down as 
general of the American army. He could have been general for the rest 
of his life. He made the decision to step down as President of the 
United States after two terms. He could have been President for the 
rest of his life. But at the beginning of our country, liberty, to many 
people, meant avoiding an executive that was too strong, that didn't 
have proper checks and balances. And our Founders put into our 
Constitution checks and balances with the court and with the 
legislature.
  Of course, as we like to point out, article 1 is about the Congress, 
about the legislature. And as I said earlier, perhaps the best known 
function the Senate has is the ability to advise and consent. The 
President may nominate, but those important people--men and women--may 
not take their offices until they have been confirmed by the Senate.
  This administration, I am sorry to say, has not respected those 
checks and balances, as I had hoped it would. I would suggest maybe a 
retreat to Mount Vernon for President Obama and the White House staff. 
The Obama administration has appointed more czars than the Romanovs. We 
have always had some czars, such as the drug czars, but they have three 
dozen--three dozen who aren't subject to the usual restrictions that we 
have through the appropriations process.
  The most blatant example of the imperial Presidency are the recess 
appointments at a time when the Senate, according to this court, was 
not in recess, in order to put into those positions men and women with 
whom the Senate would not agree. If the President could do what the 
President did on January 4, 2012, on a regular basis, we might take a 
recess break for lunch and come back and find we have a new Supreme 
Court Justice.
  I am here to suggest the right thing to do would be to respect the 
tradition of checks and balances that is built into our Constitution. 
It is at work here, because the President took an action, we didn't 
like it, and the third branch of government has made a decision the 
President was wrong. The way to go forward is for the two remaining 
members of the National Labor Relations Board who were appointed 
unconstitutionally to resign their position and for the President to 
nominate as rapidly as he can men or women to fill the remaining 
vacancies on the board. And to the extent the committee on which I am 
the ranking Republican, which oversees labor matters, has anything to 
do with that, I will pledge speedy consideration of those nominees.
  Let's get the National Labor Relations Board back in business. But it 
cannot be open for business today. It cannot be properly open for 
business today. Those two members should resign their positions and 
recognize the court has said we still have in America a Constitution 
that provides checks and balances. So take down the sign that says: 
Open for business, and put up the sign that says: Help wanted. 
Nominations accepted.
  Mr. President, I commend my colleagues to read my floor remarks of 
February 2, 2012, about recess appointments, which I made following the 
President's so-called recess appointments and following my visit to 
Mount Vernon.
  I yield the floor, and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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