This story has been updated.
President Obama’s recent recess appointments to the National Labor Relations Board and the new Consumer Financial Protection Bureau will create years of legal uncertainty for actions taken by those agencies and chaos for companies affected by the decisions, Republican critics will testify Wednesday.
A House Oversight and Government Reform Committee hearing is set to lay bare GOP concerns with Obama’s decision in January to appoint Richard Cordray to lead the CFPB and to seat three nominees on the NLRB while the Senate was out of town.
The White House and Justice Department defended Obama's move by arguing that the recess appointments were constitutional because recent pro-forma sessions of the U.S. Senate did not constitute a legitimate session that could block the appointments.
But if Congress doesn’t act, Obama’s decision "may well live on in infamy as a day the Congress refused to enforce a provision of the Constitution and instead ceded one of its rightful powers to the executive," Sen. Mike Lee (R-Utah) told the committee.
"Ours is not a government of one, and for the president to believe otherwise is an insult to the Constitution and an insult to the American people," Lee said later.
The committee's chairman, Rep. Darrell Issa (R-Calif.), said Obama appeared to be using different definitions of pro-forma Senate sessions to meet different priorities, noting that the Senate passed an extension of the payroll tax cut on Dec. 23 during a pro-forma session.
"I am just as concerned that the IRS is not collecting those taxes when clearly they were in recess, according to the president," Issa said.
Issa acknowledged that the U.S. Constitution doesn't define the scope of a partial Senate recess or pro-forma sessions.
"The courts may soon decide – the sooner the better – whether these appointments are valid and whether a law limiting taxes to the American people is valid," he added.
Obama has “eliminated all predictability from the nomination-and-confirmation process,” C. Boyden Gray, a former Republican diplomat and White House counsel, is set to say, according to his prepared testimony. “Neither the Senate nor the public knows what principles the President will follow in determining who gets a recess appointment. We also do not yet know how the Senate itself will respond, but we do know that it likely will respond by finding other means by which to achieve the checks and balances that previously were achieved by withholding consent for nominations.”
Beyond constitutional and procedural concerns, Mark Carter, a Republican labor lawyer, says in prepared testimony that forthcoming NLRB decisions successfully challenged and reversed by federal courts will cause strife for workers and companies affected by the decisions.
Firms or unions that lose NLRB decisions “will be strongly incented” to appeal them in federal court by arguing that Obama’s recess appointments were unconstitutional.
“The uncertainty created by this state of affairs will impact labor stability and commerce,” Carter warns. “For example, if the NLRB issues an order that requires an employer to relocate work from one manufacturing plant to another, significant interests for all parties are at stake. If the parties presume the constitutionality of the NLRB appointments and comply with the order, the employer will lose its investment in the engineering of, and the use of, the new plant; the employees of the new plant will lose their jobs if the plant is not re-engineered; and the work will be relocated pursuant to the Board’s direction. However, if the Board’s decision is determined to be unenforceable, the work could be returned to the new facility, that plant’s employees rehired and the employer would face the costs associated with the exercise.”
But Michael Gerhardt, a professor of constitutional law at University of North Carolina Chapel Hill who specializes in “constitutional conflicts,” is set to tell lawmakers that Obama had no choice.
“These recess appointments appear to be the only feasible means by which these positions will be filled in the foreseeable future,” Gerhardt says in his prepared testimony. “The fact that these appointments have been made increases the likelihood that the affected agencies will be able to fulfil their statutory objectives, whereas allowing the positions to remain unfilled leaves many Americans unsure about whether or when these statutory objectives may ever be realized.”
Gerhardt is the invited witness of the committee’s Democrats. No Obama administration officials are scheduled to attend or were invited to explain the president’s decision, according to committee aides.
The committee's ranking Democrat, Rep. Elijah Cummings (Md.), echoed Gerhardt's sentiments.
"Senate Republicans left the president with no choice," Cummings said. "These recess appointments were the only way to comply with Congress' intent in establishing and maintaining fully functioning agencies."
Obama has made just 32 recess appointments, Cummings said, compared to the 171 made by George W. Bush, 139 made by Bill Clinton and 240 by Ronald Reagan at similar points in their presidencies.
Follow Ed O’Keefe on Twitter: @edatpost