The Department of Justice made Obama's argument that the President has discretion to decide if the Senate is unavailable to perform its advice and consent function. The judges rejected this interpretation of the law. "Either the Senate is in session or it is in recess," wrote Chief Judge David Sentelle. "If it has broken for three days within an ongoing session, it is not in the 'recess' described in the Constitution." GOP lawmakers performed pro forma sessions thereby keeping the Senate in session status and not recess status.
Pro forma sessions have been used by both Democrats and Republicans to stall the President from making appointments during recess. The Senate is gaveled in and out of session. Some sessions have a duration of a couple of minutes. The White House called these sessions a sham. Recess is defined as the once a year break between sessions of Congress. Sentelle said one of these pro forma sessions officially convened the second session of the 112th Congress. The President can exercise recess appointment only if the openings arise during official recess.
The Senate taking two day breaks is not just cause for the President to exercise discretion. This could allow the Senate to be circumvented when they broke for lunch. "Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers," Sentelle wrote. "I think this is a very important decision about the separation of powers," said Carl Tobias, a constitutional law professor at the Virginia's University of Richmond. GOP have blocked the appointments to the National Labor Relations Board stating the nominations were too union heavy making the board biased. Other appointments made during this same period are under appeal and will be heard by separate court sessions. This ruling curtails a President's ability to circumvent obstruction of appointments.
By separate appeal, challenge has been issued on the appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment was made under the same conditions. If his appointment is also ruled in violation of the Constitution, then all regulations issued by the board would also be nullified. Cordray oversaw implementation of many regulations in the remake of the mortgage industry.
Sen. Tom Harkin, D-Iowa explained, "Throughout his presidency, Republicans have employed unprecedented partisan delay tactics and filibusters to prevent confirmation of nominees to lead the NLRB, thus crippling the Board's legal authority to act." He also urged the NLRB to conduct business until a Supreme Court ruling is issued.
What does this mean? White House press secretary Jay Carney isn't saying if the White House will appeal this decision. If the ruling stands, hundreds of decisions issued will be invalid. The board would have only one valid appointed member; three sitting members are required for decisions. The board would be shut down. The NLRB is an independent federal agency mediating disputes between management and labor unions or an organized workforce. They do not address unpaid wages, safety on the job, employment discrimination, workers' compensation, or a number of other work-related issues. One recent ruling to fall under validity is 359 NLRB No. 30 (2012). During contract negotiations, employers would cease to collect union fees once the contract expired. This ruling forces the employer to continue acting as the union's collection agency and providing the union with income even while there is no current contract between labor and management. This ruling by the NLRB overturned more than 50 years of precedent adding credence to the GOP claim the board is union bias.
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