- The Washington Times - Tuesday, February 7, 2012

President Obama’s recess appointments to fill the National Labor Relations Board are operating on “shaky ground” and any rulings they participate in will be “tainted,” a key House Republican warned Tuesday.

House Education and the Workforce Committee Chairman John Kline, Minnesota Republican, said Mr. Obama’s decision to name three NLRB members last month as recess appointments created a “constitutional crisis” because the Senate was in pro forma session at the time.

“Make no mistake, every action taken by the board will be tainted,” he said.

But House Democrats and one witness at the hearing argued the recess appointments were a necessary constitutional evil required to move beyond the “congressional squabbles” and keep the agencies functioning in order to protect workers and consumers.

“The constitutional debate is fascinating, but it obscures the real issue,” said Susan Davis, partner at Cohen, Weiss and Simon LLP in New York City. “What will happen to workers?”

The hearing was the first public airing of House GOP anger over the appointments at the NLRB, which has become a political flash point between the Obama administration and congressional Republicans. Mr. Obama also angered GOP lawmakers by installing a chairman of the new Consumer Financial Protection Bureau.

Dennis Devaney, a former NLRB member, told the committee the issue won’t be resolved until the NLRB or CFPB makes an adverse decision in a high-profile case.

“I would not have made these recess appointments,” he said. “This was a very bad idea, and a very bad precedent by the president.”

The Obama administration defended the recess appointments, saying the Senate was holding essentially sham sessions to frustrate the president’s nominations.

“I think everybody here agrees the president has the power to make recess appointments,” Mr. Kline said. “There is clearly a difference of opinion as to whether he has the power to make recess appointments while the Senate was in a pro forma session.”

The Minnesota Republican said the uncertainty over the legitimacy of Mr. Obama’s appointees will only cast a further cloud over the struggling economy. Employers and unions alike will be unsure whether the board’s rulings could be reversed if a court challenge to Mr. Obama’s appointments is upheld.

House Republicans and several witnesses noted that the Senate extended the payroll-tax cuts on Dec. 23, and the president signed the bill, during the year-end pro forma session. So they argue the Senate was, in fact, conducting business and could not have been in recess.

“Either the payroll-tax cut passed by the Senate during a pro forma session is the law of the land and the recess appointments are invalid, or 170 million Americans are receiving tax relief unlawfully and the appointments should stand,” Mr. Kline reasoned. “No amount of legal manipulation can allow the president to have it both ways.”

During the George W. Bush administration, Senate Democrats did the same thing, holding the chamber formally in session during breaks to prevent recess appointments.

Republicans argue the precedent should go both ways, but Democrats on Tuesday sided with the White House.

“I think the president was right to [make the appointments],” said Rep. George Miller, California Democrat and ranking member of the committee. “I think George Bush would have probably been right to breach it, if he believed in those appointments.”

But House Republicans warned accepting the NLRB candidates could open the floodgates to more controversial recess appointments.

“What’s the definition of a recess?” asked Rep. Trey Gowdy, South Carolina Republican. “Can the president do it over a lunch break? Can he wait until the Senate decides to take a nap, and then make the recess appointments?”

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