[Congressional Record Volume 159, Number 13 (Wednesday, January 30, 2013)]
[Senate]
[Page S405]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BLUNT (for himself, Mr. Cruz, Mr. Lee, Mr. Scott, Mr. 
        Inhofe, Mr. Roberts, and Mr. Cornyn):
  S. 188. A bill to prevent certain individuals purportedly appointed 
to the National Labor Relations Board from receiving salaries, and to 
prevent an unconstitutional quorum of the Board from taking agency 
actions, until there is a final decision in pending lawsuits regarding 
the constitutionality of certain alleged recess appointments; to the 
Committee on Health, Education, Labor, and Pensions.
  Mr. BLUNT. Mr. President, I rise to talk about a piece of legislation 
I intend to introduce on behalf of Senator Cruz and myself, The Advice 
and Consent Restoration Act, which responds to last week's decision 
announced on Friday by a three-judge panel on the DC Circuit Court of 
Appeals, where they unanimously ruled that President Obama violated the 
Constitution when he made so-called recess appointments to the National 
Labor Relations Board. They are so-called recess appointments because 
the Senate was still in session.
  The fundamental question is does the President get to decide whether 
the Senate is in session or does the Senate get to decide whether the 
Senate is in session. If that question had been debated when the 
Constitution was being debated, I am sure they would have said: That 
will never come up; there is no way we are going to develop a system 
with this separation of powers and the President will decide whether 
the Senate is in session.
  This President did decide that, and the court agreed with the 
argument that a number of Senators, Senator McConnell and I, along with 
40 of our colleagues, filed in an amicus brief that clearly made the 
point the Senate gets to decide when the Senate is in session. We 
argued that the Constitution does not empower the President to make 
this decision. The court agreed with that argument, stating that any 
other interpretation of the Constitution would give the President free 
rein to appoint his desired nominees anytime he pleases. In a direct 
quote, the court said it would give ``the President free rein to 
appoint his desired nominees anytime 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.'' That is the end of the quote from the 
three-judge panel's decision.
  The right of the Senate to provide advice and consent is an important 
check on the risk of this type of Presidential overreach and one the 
Senate should actively exercise. In fact, the Senate actively and 
consciously made the decision in January to stay in session to do some 
of the work that needed to be done during the session and, frankly, to 
be sure that the President couldn't avoid the constitutional 
requirement of advice and consent.
  Allowing the President to determine the Senate's schedule would 
seriously damage the balance of powers; it would seriously damage the 
Senate's autonomy. It eliminates an important check on the executive 
branch.
  The court invalidated the one ruling that was being appealed. Of 
course, the Presiding Officer understands this exactly, that the court 
case would only have appealed one ruling that impacted one company or 
one employer, and the court said that ruling can't stand. There are 
more than 200 other actions this same group, which the court said is 
not legally functioning, had taken, and all 200 or more of those 
actions are now in question.
  I believe the answer will be clear. Perhaps all those will have to be 
appealed in some way so that a court can say, No, just as in the first 
ruling we made, the people who made these decisions were not 
constitutionally in place; consequently the ruling they made isn't in 
place. The work of this agency will not pass constitutional muster and, 
of course, the President needs to now appoint people who would be 
confirmed by the Senate.
  In spite of the three-judge panel's unanimous decision, the National 
Labor Relations Board recently announced that it intends to ignore the 
ruling and carry on with business as usual. This is not a very 
acceptable response. The President first decides he is going to decide 
whether the Senate is in session. Then the people he appoints in an 
unconstitutional way decide they are going to ignore the court ruling 
and continue to do what they have been doing.
  The President needs to reappoint, and until the President does 
reappoint, Congress has a responsibility to block this unconstitutional 
act by terminating the salaries of those who were illegally appointed 
and by preventing them from conducting any official business until the 
Senate acts to approve their appointments.
  Senator Cruz and I urge our colleagues to join us in supporting this 
effort. The National Labor Relations Board should take down the ``open 
for business'' sign they put up on Monday after the court ruling on 
Friday. Frankly, they need to put up a ``help wanted'' sign.
  The Constitution matters. What the Constitution says matters. The 
Senate, I hope, will be vigorous in enforcing its constitutional 
responsibility.
                                 ______