The Short Memories of the “Recess” Appointment Supporters
The year 2007 doesn’t seem all that long ago. But that’s evidently long enough for organized labor and its supporters to conveniently forget about what constitutes a recess appointment.
Professor John Logan is the director of Labor and Employment Studies at San Francisco State University, and a supposed “expert on the anti-union industry and anti-union legislation in the U.S.” Logan provides a perfect example of this defective memory with his op-ed in The Hill this week. Logan is responding to two articles by Trey Kovacs of the Competitive Enterprise Institute and Fred Wzsolek of the Workforce Fairness Institute, both of which questioned the process around the appointments to the National Labor Relations Board (NLRB).
Recall the purported “recess” appointments to the NLRB by President Obama one year ago. Rather than waiting until the Senate was actually in recess to invoke his Article II, Section 2 power, Obama appointed Richard Griffin, Sharon Block, and Terence Flynn to the NLRB during a pro forma session. This means that the Senate has not officially recessed.
Though he recognizes that the Congress was in pro forma session, Logan dances around the constitutional details and argues that President Obama appointed these members in this way due to Republican obstruction.
Time for a history lesson.
The New York Times reported last year:
Senator Harry Reid of Nevada, the majority leader, began using pro forma sessions, lasting just seconds, in late 2007 to keep the Senate nominally in session and prevent President George W. Bush from making recess appointments.
The use of pro forma sessions was respected, often begrudgingly, by Republicans — until Obama’s appointments last year. Even the administration’s Office of Legal Counsel acknowledged this history in its legal opinion on the president’s actions.
What a difference a few years makes. Reid, the father of the pro forma session, declared “I support President Obama’s decision” in 2012, and blamed the Republicans for not just accepting Obama’s nominees. Of course, this also ignores the timeline for Block and Griffin, both of whom were nominated only weeks before their “appointment” by Obama.
And while people like Logan insist that Obama had to make appointments to the Board so that it would have a quorum, Democrats lacked that concern in 2008, when there were only two NLRB members in office. Prior to Reid’s pro forma revelation, almost all of Bush’s nominees had to be appointed in a (legal) recess. But after 2007, Democrats allowed the Board to dissipate so that it could no longer legally operate, as the Supreme Court ruled in 2010. This led to the invalidation of over 600 decisions.
Has President Obama always favored recess appointments? Not exactly. In 2005, Obama slammed the recess appointment of John Bolton, insisting that “It’s the wrong thing to do” and “To some degree, he’s damaged goods… somebody who couldn’t get through a nomination in the Senate. And I think that that means that we will have less credibility….”
Obama has yet to discuss the credibility of Richard Griffin, one of his “recess” appointments. Griffin’s union ties and alleged involvement in covering up embezzlement are all a major cause for concern—and serve as a great reason to make nominees go through the official Senate confirmation process.
Obama unconstitutionally crossed the recess appointment Rubicon laid down by Reid. Those who continue to insist that the NLRB appointments were necessary and appropriate expose their utter hypocrisy to everyone who has a memory that extends past the last presidential term.