[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
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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
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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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