Herald-Leader Editorial

Uphold recess appointments; Supreme Court must not sanction gridlock

January 15, 2014 

Can the president step in when the Senate fails to do its job?

That's the central question of a case before the Supreme Court that challenges the legitimacy of three recess appointments President Barack Obama made to the National Labor Relations Board last year while Congress was on winter break.

The court heard oral arguments in the case Monday after the executive branch appealed a myopic lower court ruling that the president's constitutionally given power "to fill up all vacancies that may happen during the recess of the Senate" could refer only to recesses that occur every two years between Senate sessions because the phrasing called for "the recess" and not "a recess."

Such a narrow reading of the clause flies in the face of presidential precedent.

Over the past 150 years, presidents of both parties have appointed 600 civilians and thousands of military officials through similar intrasession recess appointments.

The Supreme Court should overturn the lower court's ruling and restore the longstanding practice of recess appointments consistent with the spirit of the Constitution.

After all, the debate is over much more than a semantic quibble: The business that brought the case, Noel Canning, wants to overturn the NLRB's decision on the basis of the appointees' apparent illegitimacy.

Such a move would call into question all 1,300 decisions made since the recess appointments.

Most people would see that as a bureaucratic nightmare, but Senate Republicans see that as a tantalizing prize for the big businesses that benefit most from the NLRB's dysfunction.

Sen. Mitch McConnell led the effort by filing an amicus brief on behalf of all 45 Senate Republicans, urging the court to invalidate the appointments.

But rather than fulfilling their constitutionally required "advice and consent" duty, filibustering Senate Republicans simply refused to consider the president's nominees to that board, part of a long-abused tactic against Obama nominees to the NLRB, the Consumer Financial Protection Bureau and the D.C. Circuit Court of Appeals, made not out of any question of qualifications — only pure political gamesmanship.

In short, Republican senators tried to undermine institutions they disagreed with by stalling nominations.

Before the president's appointments, the NLRB had only two members sitting on a five-person board — leaving the committee without a quorum and unable to take any action adjudicating charges of unfair labor practices, issuing cease-and-desist orders or providing reinstatement and back pay to employees victimized by unfair practices.

It's natural that the pro-business Republican Party would disagree with much of the work of the NLRB or the CFPB, but sabotaging them through a dereliction of duty is unforgivable.

Even after Senate Majority Leader Harry Reid finally changed the rules and did away with the filibuster for all appointments except Supreme Court justices, Obama's nominees can languish in confirmation purgatory because of a number of other tricks.

Republican senators can refuse to hold hearings or place holds on the nominees.

The important work done by the NLRB on behalf of working-class Americans should not be reversed by a short-sighted ruling that upsets the long-established separation of powers.

If that is not a powerful enough consideration for Republicans, perhaps they should consider what could happen when their nominees are stymied by similar tactics in the future.

When the Senate doesn't do its job, the rest of the government shouldn't be forced to follow suit.

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