In a Senate Health, Education, Labor and Pensions Committee vote today on the five nominees to the National Labor Relations Board, U.S. Senator Lamar Alexander (R-Tenn.), the Ranking Member, opposed the nominations of Sharon Block and Richard Griffin, saying "they have continued to serve, even though the United States Court of Appeals for the District of Columbia has said their service is constitutionally invalid."
Alexander said: "I oppose the nominations of Sharon Block and Richard Griffin. I don't doubt that these two individuals are qualified nominees. The problem is, the president appointed them as so-called recess appointments during a time when the Senate wasn't in recess This is a matter of principle. By recess-appointing NLRB members at a time when the Senate was actually in session, the president has shown a troubling disrespect for the Constitution, and the two members who continued to serve after the Appellate Court, which hears most NLRB cases, decided that they were unconstitutionally appointed, shows that same lack of respect."
Alexander continued: "I think we all agree that we'd like to see a functioning board, and a full board. We don't have that now. We have an invalid board, according to two federal appellate courts. And two of the members who are unconstitutionally there have participated in 919 cases already, which are subject to being vacated. 215 came after the Appellate Court's decision, and they're continuing to make those decisions.
"The better path would be for them to step aside, since they are invalidly appointed, and for the president to nominate two others, and for us to go forward. I'm going to vote for three nominees today--that's a quorum--and we can have two more nominees fairly quickly."
Alexander noted that the Senate's "power of advice and consent in the Article II as a curb on the executive and the powers reserved for Congress in Article I have traditionally been something that both parties have agreed upon.
"In 2004, Sen. Edward Kennedy filed a brief with the Supreme Court concerning the constitutionality of President George W. Bush's appointment of Judge William Pryor Jr. That was a recess appointment to the 11th Circuit Court of Appeals. It was done during a 10-day intra-session recess. Sen. Kennedy argued, "It is absurd to imagine that the Framers drafted the Recess Appointments Clause to provide the President such a power, to be exercised during intra-session Senate breaks lasting a fortnight, or a weekend, or an overnight.'"
On February 13, Alexander called on Sharon Block and Richard Griffin to "leave the board," after the U.S. Court of Appeals for the District of Columbia in January ruled their appointments to the NLRB by President Obama during a so-called "recess" session of the United States Senate were unconstitutional.
In April, Alexander introduced legislation that would prohibit the NLRB from taking any action that requires a quorum until the board members constituting the quorum have been confirmed by the Senate, the Supreme Court issues a decision on the constitutionality of the appointments to the board made in January 2012, or the first session of the 113th Congress is adjourned.