[Congressional Record Volume 159, Number 13 (Wednesday, January 30, 2013)]
[Senate]
[Pages S381-S383]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. ALEXANDER. Madam President, 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 saying 
that the President's use of the--I ask unanimous consent for another 3 
minutes, please.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  Mr. ALEXANDER. Madam President, I believe we have 30 minutes for this 
discussion; is that right?
  The ACTING PRESIDENT pro tempore. Twenty-three minutes remains.
  Mr. ALEXANDER. Yes. I thank the Chair.
  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: This was written for a time when it took Senator Houston 
of Texas--I ask, Madam President, that I have time to speak in morning 
business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ALEXANDER. 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

[[Page S382]]

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.
  Madam President, the Senator from Wyoming has been a leader on this 
issue, and I would like to now yield the floor and listen to his 
remarks.
  The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
  Mr. BARRASSO. Madam President, I agree completely with my colleague, 
who has really shown significant leadership in this area, worked 
closely on it. He has been a Governor for two terms, knows about 
appointments, knows about advice and consent.
  What we have seen from this President of the United States, just last 
January, is a flagrant disregard for the Constitution and the laws of 
this land by bypassing the Senate and appointing three members to the 
National Labor Relations Board, claiming--claiming--the Senate was in 
recess, even though the Senate was meeting regularly in pro forma 
sessions. So last week the U.S. Court of Appeals for the District of 
Columbia ruled unanimously--unanimously--that those unilateral 
appointments were unconstitutional.
  It is interesting because I saw the whip of the Senate Democrats on 
one of the television shows this weekend, and he said: Well, we need to 
make sure people have plenty of time for hearings. They did not have 
hearings.
  Madam President, the Democrats are in control of the Senate. They 
could have called hearings but chose not to. The President let these 
vacancies sit for long periods of time, and only in the middle of 
December of 2011 did he even put names up and then summarily, just a 
few weeks later, went and unilaterally appointed them. The Senate was 
really never consulted. The Senate did not have an opportunity to 
advise and consent. That is why I use the word ``flagrant'' in terms of 
the President's bypassing of the Senate in making these alleged recess 
appointments.
  Well, over the weekend, newspapers across this country reported on 
this consequential ruling by the court and what it will mean for the 
administration going forward.
  The Wall Street Journal called it ``Obama's Abuse of Power''--abuse--
abuse of power.
  Politico said: ``President Obama's Recess Appointment Bet Sours.''
  Investor's Business Daily reported: ``Court Finally Reins in Obama's 
Imperial Presidency.''
  The Washington Post explained: ``Court Says Obama Exceeded Authority 
in Making Appointments.''
  The Los Angeles Times reported: ``Court Rules Obama's Recess 
[Appointments] Are Illegal''--illegal.
  After we go on reading through all of this, after this court ruling, 
the White House should finally realize--finally realize--that the 
President's power to use recess appointments is not unlimited.
  The court's decision reaffirms that America's Founding Fathers 
provided the Senate--the Senate--a responsibility, a duty to advise and 
consent, and they did it with the strong, coequal responsibility on 
important nominations.
  Well, let's take a look at what the U.S. Court of Appeals for the 
District of Columbia actually ruled when they talked about the 
President's so-called recess appointments.
  The court said:

       An interpretation of ``the Recess'' that permits the 
     President to decide when the Senate is in recess would 
     demolish--

  ``Demolish,'' the court said--

     the checks and balances inherent in the advice-and-consent 
     requirement, giving the President free rein to appoint his 
     desired nominees at any time he pleases, whether that time be 
     a weekend, lunch, or even when the Senate is in session and 
     he is merely displeased with its inaction.

  The court went on to say: ``This cannot be the law.''
  I agree completely with the court, which is why I am here on the 
floor of the Senate with my colleagues. Senator Johanns, also a former 
Governor, is with us today. These are individuals who understand the 
importance of advice and consent. And again, as to Senator Johanns, he 
has been a Cabinet member. He has been subjected to the process of 
advice and consent, and he knows how important that is in the balance 
of power, in how Washington and our Nation are supposed to work by the 
Constitution.
  As the court wrote, ``Allowing the President to define the scope of 
his own appointments power would eviscerate the Constitution's 
separation of powers.''
  The court added, ``It would make little sense to extend [the recess 
appointment authority] to any intrasession break'' because the ability 
to make recess appointments would swallow the advice-and-consent role 
of the Senate.
  Because of the President's illegitimate appointments, the NLRB is now 
operating under a cloud of uncertainty all across the country in all of 
their regulations and rules. That is why shortly after the 
appointments, the President's appointees to the NLRB--Sharon Block, 
Terence Flynn, and Richard Griffin--began issuing orders and opinions 
in labor disputes. So they have been doing that now for over a year.
  All of those decisions that the Board issued by a quorum made up by 
those members--there were over 200 of those rulings coming out in the 
past year--are subject to challenge and to invalidation. We have heard 
from Senator Alexander on one of those having to do with micro unions. 
Another had to do with collection of union dues even after the 
contracts had expired. On and on and on, numbers of rulings, over 200 
have been made. They are all subject to challenge and invalidation 
because there was no legitimate quorum for the National Labor Relations 
Board. At this moment it is practically impossible for anyone to know 
which NLRB decisions are valid and which are not. It is my opinion that 
none of them should be valid. But it is time to stop this regulatory 
train wreck from getting any worse. That is why this week I am 
introducing a bill that will freeze any decisions, any regulations, any 
rulings made by this unconstitutionally appointed and invalid quorum of 
the National Labor Relations Board. Until we have final resolution from 
the courts, the NLRB should not be able to move forward and create even 
more uncertainty across this country.
  We would not be in this position if the President of the United 
States had done what legally he is mandated to

[[Page S383]]

do, which is work with Congress and follow the Constitution. I hope 
that court ruling serves as a wakeup call for President Obama and for 
his entire administration. Instead of going around Congress, instead of 
going around the Constitution, it is time for the Obama administration 
to work with us on nominations.
  I see the Senator from Nebraska is here, the former Governor, former 
Cabinet member. I look forward to hearing his comments as well.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Nebraska.
  Mr. JOHANNS. Madam President, I rise today, first of all, to say 
thank you to Senator Barrasso and Senator Alexander for speaking so 
forcefully on this issue. All of us in this body are elected officials 
and we take an oath. In that oath, we raise our right hand and we 
promise our Nation that we will uphold the Constitution of the United 
States, this very sacred document that has so soundly guided our great 
country from one decade to another, one century to another, one 
generation to another.
  In fact, many of my colleagues in Congress took that oath earlier 
this month. Just 10 days ago, President Obama took the Presidential 
oath of office with great pomp and circumstance. We were all on the 
platform with him. He promised the Nation that he would preserve and 
defend the Constitution of the United States. But I fear that now what 
we are seeing is a flaunting of that very document.
  You see, the DC Court of Appeals ruled that the President violated 
the Constitution with his appointment of three members to the National 
Labor Relations Board. I read the opinion. I saw no other solution than 
to ask these individuals to leave. The truth of the matter is they are 
not constitutionally there and need to leave.
  This request was not about a personal preference or an attitude about 
any one individual. It was not about their qualifications. It was about 
the oath of office we take. And that oath of office says we will uphold 
the Constitution. The NLRB appointments were unconstitutional because 
the President only has the power to bypass our advice-and-consent role 
here in the Senate under the language of the Constitution. The court 
unequivocally found that the appointments were made last January while 
the Senate was not in recess, and were therefore void. Therefore, the 
President could not use the recess appointments clause of the 
Constitution to appoint these individuals. The ruling correctly 
concludes: ``Allowing the President to define the scope of his own 
appointments power would eviscerate the Constitution's separation of 
powers.''
  The separation of powers is a critical safeguard to ensure that one 
branch of government does not overstep the other. The court goes on to 
say that allowing these nominations to stand ``would wholly defeat the 
purpose of the Framers in the careful separation of powers.''
  Additionally, because these appointments were unconstitutional, the 
board lacked the quorum necessary to make decisions over the past year. 
This calls into question over 200 rulings of the board since last 
January. I personally believe that there is no doubt, if they are not 
constitutionally there, if they are there violating the Constitution, 
then all of their rulings, all of their regulations, all of their 
actions as a board are invalid and void.
  That is why I wrote last Friday to the Government Accountability 
Office asking them to report to us every single decision they had made 
that was in excess of their powers to be there. You would think it 
would be common sense that the board would suspend all further action. 
You know, as a former member of the Cabinet, it never occurred to me 
that I had the right to ignore court decisions. I cannot imagine. The 
Chairman of the NLRB said this, ``The board respectfully disagrees with 
the decision.'' The Chairman indicates they will continue to conduct 
business as usual, even though a unanimous appeals court has deemed the 
appointments of all but one member of the board to be unconstitutional. 
I find their action absolutely appalling. Decisions by the NLRB are 
felt across the country.
  It is not fair for the Board to say to the court: Go pound sand, 
which is exactly what they are telling this court. It is already awful 
that 200 litigants now have to go through the time and expense to 
appeal their rulings. Instead of continuing business as usual and 
issuing more bogus rulings, the Board should recognize that it is time 
to leave and to honor the Constitution.
  I will wrap up with this. The D.C. appeals court ruling was a victory 
for our system of government. I believe it was a victory for the 
Constitution. It ensures that no one, including the President of the 
United States, is above the Constitution. I simply ask the NLRB, its 
members who were unconstitutionally appointed, to recognize the 
sanctity of our Constitution and vacate their offices immediately. 
Leave. Let us in the Senate have the powers granted to us by the U.S. 
Constitution to offer advice and consent to the President of the United 
States.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from New York.
  (The remarks of Mrs. Gillibrand pertaining to the introduction of S. 
179 are printed in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')

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