Saturday, March 27, 2010

Obama's Recess Appointments: 15 announced today including to NLRB

Article II section 2, clause 3 of the Constitution allows the President to make "recess appointments":

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

A release from the White House Press Secretary today notes that there are currently "a total of 217 nominees pending before the Senate," who have been "pending for an average of 101 days, including 34 nominees pending for more than 6 months."  Specifically, the release contends that the 15 nominees to be appointed  "have been pending for an average of 214 days or 7 months for a total of 3204 days or almost 9 years."

The named nominees are:

  • Jeffrey Goldstein: Nominee for Under Secretary for Domestic Finance, Department of the Treasury;
  • Michael F. Mundaca: Nominee for Assistant Secretary for Tax Policy, Department of the Treasury;
  • Eric L. Hirschhorn: Nominee for Under Secretary of Commerce for Export Administration and head of the Bureau of Industry and Security, Department of Commerce;
  • Michael Punke: Nominee for Deputy Trade Representative - Geneva, Office of the United States Trade Representative;
  • Francisco "Frank" J. S├ínchez: Nominee for Under Secretary for International Trade, Department of Commerce;
  • Islam A. Siddiqui: Nominee for Chief Agricultural Negotiator, Office of the U.S. Trade Representative;
  • Alan D. Bersin: Nominee for Commissioner, U.S. Customs and Border Protection, Department of Homeland Security;
  • Jill Long Thompson: Nominee for Member, Farm Credit Administration Board;
  • Rafael Borras: Nominee for Under Secretary for Management , Department of Homeland Security;
  • Craig Becker: Nominee for Board Member, National Labor Relations Board;
  • Mark Pearce: Nominee for Board Member, National Labor Relations Board;
  • Jacqueline A. Berrien, Nominee for Chair of the Equal Employment Opportunity Commission;
  • Chai Feldblum, Nominee for Commissioner, Equal Employment Opportunity Commission;
  • Victoria A. Lipnic: Nominee for Commissioner, Equal Employment Opportunity Commission;
  • P. David Lopez: Nominee for General Counsel, Equal Employment Opportunity Commission

The appointments of Becker and Pearce to the NLRB provide an answer to CJ Roberts query in the oral argument in New Process Steel v. National Labor Relations Board on Tuesday, concerning the ability of the NLRB to act when only two of its five positions are filled.  Neal Katyal, Deputy Solicitor General, was discussing the present composition of the NLRB:

MR. KATYAL: There are three nominees pending right now.
MR. KATYAL: Yes. And they have been pending. They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum -- a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?
MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board.

(Transcript at 49-50). 


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