Asserting the Senate’s power

January 31, 2013

A three-judge panel on the D.C. Circuit Court of Appeals last week unanimously ruled that President Barack Obama violated the Constitution when he made recess appointments to the National Labor Relations Board (NLRB) last year.

The court agreed with the argument outlined in an amicus brief submitted by Senate Majority Leader Mitch McConnell (R-Ky.), myself and 40 of our Republican colleagues. We argued that the Constitution does not empower the president to determine when the Senate is in recess.

The court  ruled that any other interpretation of the Constitution would give “the president free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction.”

The Founders established the constitutional separation of powers for a reason. The Senate’s right to provide advice and consent is an important check on the risk of this type of presidential overreach – and one we exercised last January. Yet despite of the court’s unanimous decision, the NLRB recently announced that it intends to ignore the ruling and carry on with business as usual.

This is not an acceptable response — which is why I’ve introduced “The Advice and Consent Restoration Act” on Wednesday to correct Obama’s blatant overreach. This bill would terminate the salaries of Obama’s illegal NLRB appointees and block the board from taking any action until these appointees are legally confirmed. By doing so, this legislation — cosponsored by Senators Susan Collins (R-Maine), John Cornyn (R-Texas), Ted Cruz (R-Texas), Mike Lee (R-Utah), Tim Scott (R-S.C.), Jim Inhofe (R-Okla.) and Pat Roberts (R-Kan.) — is intended to reestablish the proper limits on the executive branch’s ability to make these kinds of appointments.

Allowing the president to determine the Senate’s schedule does serious damage to the legislature’s autonomy, and eliminates an important check on the executive branch. It is the Senate’s responsibility to protect these checks and balances, and exercise its legislative powers to restore them if they are undermined.

The D.C. Circuit invalidated the one ruling that was being appealed. But more than 200 other actions are now in question. The answer is clear: The work of this agency will not pass constitutional muster.

Obama now has one clear constitutional path forward. He can seek the advice and consent of the Senate to lawfully appoint his nominees. Until then, the NLRB should take down the “open for business” sign and put up the “help wanted” sign.

The Constitution still matters.

PHOTO:  The Capitol dome and Senate (R) in Washington, August 2, 2011. REUTERS/Jonathan Ernst 


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