The status of the board has been in limbo since a three-judge panel of the D.C. Circuit Court of Appeals ruled unanimously in January that the president exceeded his constitutional authority by forgoing the usual confirmation process and appointing three board members while Senate lawmakers were on break in January 2012.
Republicans around that time were blocking confirmation of Obama’s political nominees. The president ultimately made “recess appointments,” selecting three members for the board while the Senate was on break.
The Constitution allows recess appointments but does not specify how many days the Senate must be on break before that can happen.
Republicans argue that no president has taken such action during a break of less than 10 days, but they held pro forma sessions — meaning lawmakers were gone but technically not on recess — in early 2012 to prevent any recess appointments by that standard.
Democrats used that same tactic to block confirmation of certain political appointments of President George W. Bush.
The board has not had five confirmed members since 2003, but a quorum of just three members is required for the panel to issue decisions in labor disputes.
Sen. Lamar Alexander (R-Tenn.), ranking member of the Senate committee, opposed two of Obama’s nominees Wednesday because they were among the president’s 2012 recess appointees.
“This is a matter of principle,” Alexander said. “By recess-appointing NLRB members at a time when the Senate was actually in session, the president has shown a troubling disrespect for the Constitution.”
Sen. Tom Harkin, chairman of the committee, supported Obama’s nominations.
“I hope that as we move to the floor we can put politics aside and do our duty to consider all of these nominees fairly on their own merits,” Harkin said. “This is an exceptionally well-qualified package of nominees, and they all deserve to be swiftly confirmed.”
The president’s NLRB nominees are Harry Johnson and Phil Miscimarra, along with two of his previous recess appointees, Sharon Block and Richard Griffin, as well as current board chairman Mark Gaston Pearce, whose Senate-confirmed term expires in August.
Obama’s third recess appointee, Terence Flynn, resigned from the board last year amid allegations of ethics violations.
The NLRB has said it will petition the Supreme Court to review the appeals court’s ruling. All the board’s decisions since the president made his controversial recess appointments will hinge on whether the justices accept the case.
If the Supreme Court rejects the case, then the lower court’s decision would stand, effectively nullifying hundreds of NLRB decisions since Obama made his recess appointments.
The NLRB has has ruled on hundreds of labor disputes since Obama made his appointments in 2012, and the board has moved forward with issuing decisions despite the appeals court decision in January.
In April, the Republican-controlled House approved a bill to prohibit the NLRB from taking any actions that require a panel quorum until the Supreme Court issues a decision on the constitutionality of the recess appointments or until all members of the board are confirmed by the Senate.
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