January 4, 2012
NLRB Recess Appointments!
UPDATE: Looks like the earlier reports are correct: the White House has just announced that it will make recess appointments for all 3 pending NLRB nominees (Block, Flynn. and Griffin). I'm a bit suprised that he appointed the Republican, Flynn, as he hadn't done that the last time around. But it's a pleasant surprise, as I think it's good to have the NLRB with the full 5 members and also appears more even-handed.
Something to monitor today: Reports are out that the President will make a recess appointment of Richard Cordray as director of the Consumer Financial Protection Bureau. Those same reports indicate that other recess appointments are coming today as well. The big question, if true, is whether the NLRB nominees are among them. I can't imagine that, if other recess appointments happen, the NLRB wouldn't be included, but we'll have to see. Stay tuned.
Hat Tip: Patrick Kavanagh, Mitch Rubinstein, and Rebecca Hamburg
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Looks like you're right:
Posted by: Dave | Jan 4, 2012 12:23:06 PM
Yeah, never mind that pesky Constitution....
Posted by: James Young | Jan 4, 2012 5:35:48 PM
I wonder if regional directors will prefer a whole new round & mode of New Process Steel objections in every case to the paralysis of not functioning with an insufficient number (we now know) of Board members. I'm pretty sure I know what my director-friends would say.
Posted by: Michael Duff | Jan 5, 2012 6:01:33 AM
To all interested. There are several posts with links at www.volokh.com regarding the constitutional issues. I am inclined to go with Prof. John Elwood who says the pro forms sessions were and are now meaningless and do not eliminate a recess.
In other words, Bush should have called Reid's game in 2007.
Posted by: Per Son | Jan 6, 2012 7:53:28 AM
I wouldn't dispute "Per Son's" suggestion. The more vexing question is how Reid would have responded. That he has not objected to Obama's actions are hypocrisy, at the very list.
Posted by: James Young | Jan 7, 2012 3:23:32 PM
Reid would have cried bloody murder like how Republicans with saying letting the payroll tax expire was not raising taxes and it needed to be funded when they said the opposite with letting the Bush tax cuts expire. They are all hacks, just some I like more than others since the hacking supports my values.
Posted by: Per Son | Jan 7, 2012 5:44:01 PM
Ah, but "Per Son," at least those Republicans had the fig leaf of the fraud which is Social Security and the notion that the tax actually funds "accounts." And remember: the Bush tax cuts were only "temporary" --- or more "temporary" than most tax cuts --- because Reid and his crowd wouldn't allow them to be made permanent in the first place.
Posted by: James Young | Jan 9, 2012 2:26:20 PM
Stop blogging James!! You have argument to prep for!
Posted by: Per Son | Jan 10, 2012 5:22:52 AM
Republicans claim to be strict constructionist of the Constitution, purportedly sticking closely to the Constitution’s plain wording and looking to the intent of the Framers when that wording is not clear.
Notably the Recess Clause does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Notwithstanding the absence of any requirement of a minimum recess length in the Recess Clause, former NLRB Chair Peter Schaumber attacks Obama’s appointments on the grounds that a recess must be for longer than 3 days before a president can name a recess appointee. Ignoring the plain wording of the clause and historical examples to the contrary, Schaumber claimed the day after Obama made these appointments that, “A recess until yesterday, however, to be a recess had to be for not less than 3 days.”
But Schaumber doesn't get to rewrite the Constitution to fit his political or policy goals. The Recess Clause contains no express or implied 3 day recess requirement, regardless of the fact that the Clinton Justice Department argued for such a limit in its brief in Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, 10 F.3d 13 (D.C. Cir.1993).
Posted by: Glenn Stephens | Jan 10, 2012 8:45:11 PM