National Labor Relations Board / Regulation

Remember When Recess Was Fun?

Bringing Out the Big Guns

Chairman Kline (R, MN-2) started off the two-hour hearing with his own personal opening statement. Being shocked by President Obama’s three recess appointments despite Congress, in his opinion, being in session. He stated the Obama must consider that he holds the power to appoint whomever he desires and that the Congressional approval process is a “gimmick.” With his new-found approval power, Kline also accuses President Obama of becoming the “arbiter of congressional proceedings” and believing that he can fill positions without the Senates consent.

Call for Unity

Representative Miller (D, CA-7) called for his fellow representatives to put aside their partisanship to work together on more important problems that the United States is facing.  Deteriorating schools, modernizing job training programs should be issues that panels should be having debates about, and not the validity of recess appointments. Making sure local governments can fund jobs for fire fighters and teachers, is also another topic which Miller believes is a real problem that should be addressed. However, he begrudgingly admits that the hearing was “just another day about partisanship” and while this time could be put to better use, but instead it is being wasted while the real problems of American society are going unfixed.

Expert Advice

Mr. Cooper, a witness, a previous assistant to legal counsel under Ronald Reagan offered an interesting insight to the situation. The issue at the heart of the hearing, he says, is if the Senate was in continuous recess during the time of the appointments made by President Obama. According to the legal counsel for the administration, the appointments were indeed constitutional and will uphold that argument. Yet, in Mr. Coopers professional opinion, the Senate was not in continuous recess, and therefore the appointments exceeded the presidents legal authority.  Nevertheless, getting back to basics, even without the Rule Making Clause, it is always up to the Senate to say when it is in recess. As it cannot adjourn for more than three days without consent from a committee. President Obama, according to Mr. Cooper, can only make appointments when the Senate is “unavailable to provide consent and advice,” which they were not at that point in time. Evidence that it was in session is the fact that the Senate passed the Payroll Tax Cut, so it could not have been in recess. Mr. Cooper stated that President Obama did not appoint the appointees because it was or was not in session, but because he knew that the Senate were going to be unwilling to confirm his nominees. In the realm of reality however, Mr. Cooper also realizes that it will be at least two years until the validity of the appointees will be determined.

More About the Process than Political Agenda

The second witness to be called was Ms. Davis, in her testimony she made a point to say that the hearing should focus more on the process of the recess appointments and not be about political agendas. Ms. Davis emphasized the Rule of Law and how it should always be used over the Rule of the Jungle. The National Labor Relations Act, in conjunction with the National Labor Relations Board are two safeguards that are meant to keep the United States under the Rule of Law. Additionally President Obama appointed three people to a board with two already on it, for a total of five board members, and if he had not, Ms. Davis feels the board would have had to shut down.  The consequences of a failing board is greater than the current topic. For example, there was a nurse protest in New York City, and the National Labor Relations Board (NLRB) forced the unions and hospitals to make a deal so the nurses could get back to work. It is a perfect example as to the authority the board holds and the influence it has on the economy of a state, and how the appointments made to the board should be appointed in a Constitutional manner.

The Labor Lawyer

Mr. Marculewicz a Shareholder in Littler Mendelson, P.C. a law firm in Washington DC, the largest in the world dedicated to the practice of labor and employment law. His testimony, as he made clear, was not about the constitutionality of the appointments but instead the impact on small businesses. Originally the NLRB consisted of one democrat and one republican, which made decision-making simpler. Now there are five appointees and the rate at which resolutions are made could be much longer. The decisions made by the board can be very controversial, and if they become into law they have the potential to have a massive effect on the American economy. Later down the road, Mr. Marculeqicz is worried that if their appointments come under examination, the decisions the board made while they were appointed could become void. This reaction would have a huge impact, meanwhile someone has to decide if the decisions made by the board should be upheld. However, one must realize at the same time, any decision made by the NLRB can be overturned by a state court, should they see it appropriate

By: Conor O’Malley


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