- 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.

“In fact, the unions picketed the NLRB in the fall of ‘06 saying, ‘Shut down the NLRB,’ ” Mr. Hopson said.

Meanwhile, Mr. Obama also would be left without a head for the new consumer protection board created by Congress last year, but which Republicans say needs reforms before it can go into operation. Last week, they launched a filibuster to block Richard Cordray, Mr. Obama’s pick to lead the agency.

That is not to say Mr. Obama has no options.

Although recent custom has held that a recess must be longer than three days before the president may use his appointment powers, the Constitution is not explicit about the matter.

Victor Williams, a clinical assistant professor at Catholic University’s Columbus School of Law, urged Mr. Obama to push the issue, just as he advocated during Mr. Bush’s days in office, when Senate Democrats refused to adjourn, blocking Mr. Bush’s recess appointment chances.

“I pushed President Bush hard to challenge [Senate Majority Leader] Harry Reid’s bluff, and he did not. President Bush capitulated the last year of his presidency,” Mr. Williams said. “This is almost brilliant that the Republicans would come in the House and use this. It’s just very interesting.”

President Theodore Roosevelt pushed that to the limit. On Dec. 7, 1903, the Senate adjourned one session and immediately gaveled in another — but Roosevelt used the instant between the two sessions to make recess appointments of more than 160 nominees.

The most recent court guidance appeared after Mr. Bush made an appointment after seven days of recess to install William H. Pryor Jr. as a judge on the 11th U.S. Circuit Court of Appeals, circumventing the Democrats who filibustered the nomination.

Sen. Edward M. Kennedy, Massachusetts Democrat, sued to block the appointment. The 11th Circuit — with Judge Pryor recusing himself — upheld it, saying the Constitution gives no minimum length of time for a recess.

Mr. Williams, the law professor, said Mr. Obama now has a chance to reassert the Roosevelt precedent.

“It actually gives President Obama even more of an opportunity to make a clean break from the pro forma session sham and say, ‘This does not limit me; it doesn’t even apply to me,’ ” Mr. Williams said.

Even if Mr. Obama doesn’t go the Roosevelt route, he has another option. Under Article II of the Constitution, the president can force Congress to adjourn — though no president has ever done so.

One other option would be a negotiated settlement between Mr. Obama and House Republicans, with the president agreeing to accept some of the restrictions on executive power the GOP has sought, and House leaders then agreeing not to keep their chamber in session.

The issue appears to be touchy for all of the leaders involved.

A spokesman for House Speaker John A. Boehner, Ohio Republican, wouldn’t talk about the negotiations over whether the House would adjourn, and representatives for the White House and Senate Majority Leader Harry Reid didn’t return messages seeking comment.

Mr. Obama said last week that he would “not take any options off the table” when it comes to recess appointments.

Tim Devaney contributed to this report.

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