- The Washington Times - Sunday, December 11, 2011

House Republicans have a not-so-secret weapon that could bring the National Labor Relations Board to a halt and block Democrats’ Wall Street watchdog agency from getting started — and all it requires is just sitting around.

By refusing to adjourn for the rest of the year, the House GOP, under a provision of the Constitution, would force the Democrat-controlled Senate to stay in session, too, thus denying President Obama the chance to make recess appointments and leaving the NLRB without a quorum to do business.

Likewise, Mr. Obama would not be able to make a recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, leaving that body stillborn.

It’s exactly the same strategy House Republicans used throughout the summer, when a group of lawmakers gaveled in a House session every few days, forcing the Senate to follow suit and effectively tying Mr. Obama’s hands.

Rep. Jeff Landry, who organized the coalition of lawmakers who took turns chairing the pro forma sessions, said he expects it will continue.

“We have no reason to believe the speaker will change the schedule we have been operating under — which conforms to the Constitution and prevents the president from making recess appointments,” Mr. Landry said.

Recess appointments are often controversial. Senate Majority Leader Harry Reid, Nevada Democrat, kept the Senate in session and blocked President George W. Bush from using his powers in his last two years in office.

When Mr. Obama won the White House, Democrats returned to taking recesses, allowing the president to make appointments of several nominees whom Senate Republicans had delayed or blocked.

When Republicans won House control last year, they began to make use of a little-explored provision of the Constitution that says no chamber can be in recess longer than three days if the other chamber is in session. By keeping the House in pro forma sessions every few days, Republicans have forced Senate Democrats to follow suit.

The stakes are particularly high now, at the end of the year, when one prior recess appointment to the NLRB is about to expire. Just three of the five board slots are filled, and if the board drops to two, it loses its quorum and cannot act.

Foreseeing the stalemate, the NLRB voted this year to delegate some authority to acting general counsel Lafe Solomon.

“If the board does in fact go down to two, they have delegated to me certain case-handling functions,” Mr. Solomon explained. “I would no longer have to ask the board for permission. I would just do it on my own.”

Mr. Solomon would be able to make basic filings in actions that have been initiated, but Edwin Hopson, a partner at law firm Wyatt, Tarrant & Combs LLP, who has studied the issue, said most of the board’s work would come to a halt.

“I’d say 99 percent of its work is stymied by it going down to less than three members,” he said.

Mr. Hopson said the complaints from Democrats and their union allies over bringing the NLRB to a halt ring hollow because that was what happened under Mr. Bush.

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