Blocking recess appointmentswould limit NLRB’s radicalism 

In his first two years in office, President Barack Obama made 28 recess appointments, many of which were of highly controversial nominees who likely wouldn’t have been confirmed otherwise. He will keep making such appointments unless House Republicans thwart it.

How? Remember that when Democrats took over Congress in 2007, Senate Majority Leader Harry Reid blocked President George W. Bush from making recess appointments by holding pro forma Senate sessions every three days during congressional breaks. The sessions lasted mere seconds, with a clerk opening the chamber and a senator immediately gaveling it closed.

Last fall, Senate Minority Leader Mitch McConnell agreed with Reid to block recess appointments while senators were out campaigning, although for various reasons, this can’t be counted on to be repeated. But House Republicans can use a tool provided by the Constitution in Article I, Section 5, which stipulates that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”

Typically, the House and Senate pass what’s known as a concurrent resolution allowing them to adjourn, and its passage is a mere formality. But if the House GOP refused to agree to it, then the Senate could not recess for more than three days.

While the Constitution specifies no minimum number of days required for a recess appointment, a March 2010 Congressional Research Service report referenced a Clinton-era Justice Department brief suggesting it was more than three days.

The report also noted that “although President Theodore Roosevelt once made recess appointments during an intra-session recess of less than one day, the shortest recess during which appointments have been made over the past 20 years was 10 days.”

Conversations with Republican Hill staffers in both chambers suggest such House GOPers aren’t considering this strategy because it would be viewed as an extreme step that would disrupt the sense of comity between the two chambers.

But in the past few weeks alone, the National Labor Relations Board unconfirmed acting general counsel Lafe Solomon has filed lawsuits against Boeing for building a non-union factory in South Carolina that employees 1,000 people, and against the state of Arizona for passing a constitutional amendment protecting workers’ rights to a secret ballot in union elections. His position would be extended were Obama to recess-appoint him.

Obama recess-appointed Craig Becker to serve on the NLRB. Though he was a lawyer for the Service Employees International Union and AFL-CIO and other unions, now he’s charged with mediating disputes between unions and businesses.

However, if the GOP were to block Obama from making recess appointments, the NLRB would be left with just two members by the end of the year — one Republican and one Democrat — and thus likely prevented from carrying out more of a radical union agenda.

Philip Klein is a senior editorial writer for The Washington Examiner.

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