Johanns demands resignation of Cordray, NLRB recess appointments

posted at 9:01 am on January 28, 2013 by Ed Morrissey

I missed this over the weekend, but it’s worth noting today.  Senator Mike Johanns (R-NE) demanded the resignation of all Obama administration officials that received recess appointments, after the DC Circuit Court of Appeals has ruled them invalid on Friday afternoon:

A Republican senator is demanding that officials appointed by President Obama last year step down from their posts on the National Labor Relations Board after a federal district court on Friday ruled their appointments unconstitutional.

Senator Mike Johanns (R-Neb.) posted a press release to his website Friday night saying he had sent letters to three appointees — Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin of the National Labor Relations Board, and Richard Cordray, director of the Consumer Financial Protection Bureau — stating that “in light of today’s opinion by the U.S. Court of Appeals for the D.C. Circuit… it is appropriate that you resign effective immediately.”

The court’s decision actually only relates directly to the appointments of Block and Griffin, though it does cast doubt on the validity of Cordray’s as well.

Johanns wrote in his letter to Griffin that “any action taken by the NLRB in the last year should be invalidated,” since the Board would technically have been operating below quorum had Block, Griffin and Flynn’s appointments not been pushed through.

Johanns wants a GAO investigation into the actions of recess-appointed officials to determine what rulings and actions now need to be invalidated:

In another letter, this one to the Government Accountability Office, Johanns argued that certain actions taken by the CFPB were also invalid, as “certain rulemaking and enforcement powers did not statutorily vest in the CFPB until a director was in place.” The Nebraska Senator went on to direct the GAO to launch an investigation to determine “what additional actions taken by the NLRB are void for lack of a quorum… [and] what actions taken by the CFPB would be implicated by today’s ruling.”

While the weekend talk shows focused on immigration or the Barack and Hillary Show, Fox News asked Senator Bob Corker about what the ruling meant.  Corker replied that it restored the “balance of power” to the federal government, and called the decision “huge“:

Sen. Bob Corker (R-Tenn.) said Sunday a recent court ruling “could well” invalidate a year’s worth of actions made by President Obama’s appointees to the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB). …

Corker was asked directly if the ruling invalidates the “more than 300 rulings made by the NLRB over the last year,” and anything accomplished under Cordray at the CFPB, during an interview on “Fox News Sunday.”

“Could well do it,” Corker responded. “In each case someone might have to challenge those rulings to make them invalid, but certainly that’s what we said at the time – these people were going to be working in vain and the rulings that they come forth with were going to be challenged. That’s turned out to be the case.”

Corker added that the court ruling “was a huge victory for anybody that believes in balance of power and the Constitution,” and called the appointments “the most abusive cases ever” of presidential overreach.

On Friday evening, I interviewed Mitch McConnell while guest-hosting the Hugh Hewitt Show.  I asked what steps the Senate could take, and the Minority Leader accurately noted that Democrats would probably keep Republicans from taking any direct action after the ruling, but that the Supreme Court was likely to keep the ruling in place:

EM: Now this has been something that presidents and the Senate have been dancing around for about sixty-something years, going back to about 1947, about what is a session and what isn’t. There’s been recess appointments, a lot of recess appointments made that would have been made illegitimate by this court ruling, because this court ruling is saying not only can you not make recess appointments unless the Senate is in formal recess, but you can’t make recess appointments for openings that didn’t open up when the Senate was in formal recess. You can’t just say that the opening…

MM: That’s a very, very broad decision. It would have been a significant decision even if it were a little bit less broad, but it’s a very broad decision, and the practical implications of this, just for the two agencies that I mentioned, the NLRB, the National Labor Relations Board, and the CFPB, the Consumer Financial Protection Board, could well mean, likely will mean that any action they took this year is inoperative, ineffective, null and void.

EM: It certainly is in relation to this one particular plaintiff. The order is, the NLRB order, or rule that they made, has been made void by the Appeals Court. Of course, the NLRB has already announced that they’re just going to proceed business as usual and file an appeal to the Supreme Court, which surprises nobody. But this basically says, Senator McConnell, there won’t be any recess appointments in the future, unless under extraordinary circumstances. There will be none. You won’t be able to qualify for a recess appointment in almost every condition.

MM: Well, we’ll see how broad the Supreme Court holding is, but even if it’s a more narrow holding, it’s still very significant, because by any objective standard, these appointments were made while the Senate and House considered themselves still in session. In other words, the point is the President does not get to decide when we are not in session. We get to decide that. If he could decide that, he could decide when we went home to go to sleep we were out of session, and he could make an appointment. So I think even if the Supreme Court upholds in a slightly more narrow way, if it upholds, I think it is a rebalancing of power, and a real slap in the face to the imperial presidency that this President has been trying to establish. …

EM: Are you going to get some sort of a sense of the Senate to try to get the NLRB to acknowledge this? Because again, they’re saying that they’re that they’re just going to do business as usual, with the exception of this one rule with this one plaintiff. They’re going to basically ignore what the court is saying until the Supreme Court rules on it.

MM: Yeah, no, I don’t think there’s anything frankly you can do about that. Of course, the brief that we filed, that Miguel Estrada wrote for us, had no Democrats on it. So the Democrats in the Senate were not interested in defending the institution. It was only Senate Republicans who were interested in defending the prerogatives of the institution. So I doubt if we could pass anything here in the Senate with a Democratic majority that would impact this one way or the other. It is an important decision. I’d be surprised, frankly, if the Supreme Court didn’t take it.

EM: And quickly.

MM: And I’m hopeful that if they take it, they’ll basically confirm it. And that will mean it’ll be law everywhere, not just in these cases that were currently being litigated.

The GAO investigation is a good idea.  Eventually, they’ll have to conduct one anyway if the Supreme Court upholds the decision, even on a less-broad basis.

Update: I misspelled Senator Johanns’ name in the headline and post; I have corrected them now.  Thanks to Steebo in the comments for the correction.


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Johanns. No e.

steebo77 on January 28, 2013 at 9:03 AM

Hold on a minute, we need to wait to see if the DC Circuit Court of Appeals is first forced to resign by Barky.

Bishop on January 28, 2013 at 9:04 AM

Yeah ‘good luck.”

Look Giggles don’t do “law” he does “I want.”

History will mark him our first emperor.

harlekwin15 on January 28, 2013 at 9:06 AM

the Minority Leader accurately noted that Democrats would probably keep Republicans from taking any direct action after the ruling, but that the Supreme Court was likely to keep the ruling in place

Non-recess recess appointments are a form of taxation, and therefore totally constitutional under the taxing power of the federal government.

steebo77 on January 28, 2013 at 9:07 AM

Bravo, Senator Johannes!

Turn the heat all the way up and keep it there.

petefrt on January 28, 2013 at 9:09 AM

What difference does it make?

PappyD61 on January 28, 2013 at 9:09 AM

The DC court of appeals acted stupidly.

BobMbx on January 28, 2013 at 9:09 AM

Dimocrats and this administration in particular, are very good at stonewalling and running out the clock. The Courts move very slowly. I think obozo and his team can manage to ignore all rulings for four years.

Flange on January 28, 2013 at 9:09 AM

What difference does it make?

cmsinaz on January 28, 2013 at 9:10 AM

Can’t the house just defund the NLRB?

ctmom on January 28, 2013 at 9:10 AM

Sorry pappy

cmsinaz on January 28, 2013 at 9:11 AM

The Messiah is above the law, he will continue to ignore any ruling he disagrees with while imposing his scriptures on social justice.

All Hail the Messiah!

dmann on January 28, 2013 at 9:12 AM

Can’t the house just defund the NLRB?

ctmom on January 28, 2013 at 9:10 AM

The House should bring that up since according to the Federal courts it is now a rogue operation. Is there a repub in the House that is half the man of Nancy Pelosi? Please step up now.
Personally I’d like to see their snarky attitude about it met with indictments.

onomo on January 28, 2013 at 9:15 AM

How can they step down when for all intents and purposes, they are unemployed and have been working fraudulently this entire time. They need to be packing boxes and returning their pay checks and benefits.

aniptofar on January 28, 2013 at 9:19 AM

Personally I’d like to see their snarky attitude about it met with indictments.

onomo on January 28, 2013 at 9:15 AM

Yes, contempt of court, for openers.

petefrt on January 28, 2013 at 9:23 AM

Can’t the house just defund the NLRB?

ctmom on January 28, 2013 at 9:10 AM

Well, a house that wasn’t drifting like a rudderless ship might, I think…

bofh on January 28, 2013 at 9:24 AM

It is huge. The crux of the matter is who decides when Congress is in recess? Congress itself, or the President? If the latter, then Congress is fundamentally subordinate to the Executive and no longer a co-equal branch, as they can at any time be declared “in recess” for the President’s purposes.

It is an intolerable state of affairs, and the court ruled properly.

JeffWeimer on January 28, 2013 at 9:25 AM

any action they took this year is inoperative, ineffective, null and void.

Can we talk about that constitutionally ineligible guy in the White House, now?

Buddahpundit on January 28, 2013 at 9:29 AM

I suspect the S.Ct. will uphold on the narrow grounds that here the Senate was meeting, albeit in only pro forma sessions. They aren’t going to invalidate the last 100 years of recess appointments, but the last two is something we can deal with. Consider it a bone John Roberts throws to conservatives.

rbj on January 28, 2013 at 9:30 AM

This ruling is huge.
But huge also describes Fast and Furious and Benghazi.
In the words of the smartest woman in the world “what difference does it make”?

I love to see this getting a little attention. The Obama media will not report it.

ORconservative on January 28, 2013 at 9:30 AM

How can they step down when for all intents and purposes, they are unemployed and have been working fraudulently this entire time. They need to be packing boxes and returning their pay checks and benefits.

aniptofar on January 28, 2013 at 9:19 AM

Agree!
III/0317

dirtengineer on January 28, 2013 at 9:32 AM

Eventually, they’ll have to conduct one anyway if the Supreme Court upholds the decision, even on a less-broad basis.

I would be willing to bet a weeks pay the Supreme Court will uphold the decision by denying cert and letting the opinion stand in its entirety.

tommyboy on January 28, 2013 at 9:34 AM

Senator Mike Johanns (R-NE) demanded the resignation of all Obama administration officials that received recess appointments

…Republicans are great… at demanding!

KOOLAID2 on January 28, 2013 at 9:40 AM

Johanns wants a GAO investigation into the actions of recess-appointed officials to determine what rulings and actions now need to be invalidated:

Oh…but WIMMINS IN COMBAT….!

/noise.

ted c on January 28, 2013 at 9:49 AM

I wonder if this is another deal with Laurence Tribe at Harvard. Who would the President ask about recess appointments during proforma sessions? Of course President Arrogant might not have asked anyone and assumed that his half vast knowledge of the constitution was sufficient to do this.

bflat879 on January 28, 2013 at 9:52 AM

In the army they used to have a law ( at least that’s how I was trained) that no soldier has a duty to obey an illegal order.

This might sound ridiculous, not sure how it would work.. but it’s time we had a law in America that government officials will be held directly responsible for following orders that are clearly unconstitutional.

For instance… the president makes and executive order tomorrow to seize all private property. Any official/police officer/military personnel/government bureaucrat who follows that order will be as much a criminal as the President is.

“Just following orders” did not save German soldiers at the end of WWII.

It is sad we have come to this in America. But this is a discussion we have to have.

JellyToast on January 28, 2013 at 10:06 AM

You mean someone out there has actually figured out how to FORCE THE MEDIA to cover (read- defend) the Marxist in Chief’s abuse of power, against the unquestionable support of a court’s legal ruling not favorable to Dear Leader?

Maybe someone, someday will have the courage to ask Shillary…..

Who gave the Standdown Order on Benghazi ?

FlaMurph on January 28, 2013 at 10:07 AM

Who gave the Standdown Order on Benghazi ?

FlaMurph on January 28, 2013 at 10:07 AM

Bingo.

Billary’s got the goods on Obama. She could let his cat out of the bag on the stand-down order, and probably threatened to if Obama tried to make her the fall guy. I suspect that, after Bill lawyered up to keep Obama from throwing her under the bus, they reached a deal: Billary covers for Obama on Benghazi and Obama sets her up for prez run in 2016. So yesterday’s MTP love fest may be just the beginning.

petefrt on January 28, 2013 at 10:17 AM

Should O’bama violate the constitution to protect it?

This steaming heap from PMS-DNC actually came out before the ruling. Excerpt:

It is not unprecedented to violate the Constitution deliberately, with good intention. In 1861, Abraham Lincoln used this path when he suspended habeas corpus in an effort to save the country during the civil war. In doing so, President Lincoln was successful in reuniting the government. On Saturday, host Melissa Harris-Perry and her panel discussed when it would be necessary for the Commander-in-Chief to trump the age-old document.

“The president needs to get his best legal advice and move forward [without Congress]” said Seton Hall University law professor Mark Alexander on Saturday’s Melissa Harris-Perry, urging that valuable time is being wasted in Washington debating the debt ceiling issue.

“I suspect that the president is worried,” said TIME senior correspondent Michael Crowley when discussing President Obama’s apparent caution. Crowley mentioned that our reputation is at risk in the global financial markets if the wrong decision is made.

New York University associate professor Cristina Beltran doesn’t believe there will be a backlash if President Obama makes an exclusive decision sans Congress. Beltran touched upon how the president had to deal with the same type of decision regarding immigration reform. She said there is no issue “if he has to circumvent congress to overcome a potential future global economic crisis…we had an election, and he’s doing something.”

Translated: “We won, so Intercourse the Constitution!”

Del Dolemonte on January 28, 2013 at 10:26 AM

For instance… the president makes and executive order tomorrow to seize all private property. Any official/police officer/military personnel/government bureaucrat who follows that order will be as much a criminal as the President is.

“Just following orders” did not save German soldiers at the end of WWII.

It is sad we have come to this in America. But this is a discussion we have to have.

JellyToast on January 28, 2013 at 10:06 AM

If he survives…

affenhauer on January 28, 2013 at 10:36 AM

Justice Roberts will deem the appointments to be a tax…move along.

hillsoftx on January 28, 2013 at 10:40 AM

If the people in the House of Rep would do their job this could be resolved immediately if not sooner. All that needs to be done is stop the funding for anything that was done by recess appointment! The only problem with this is these people do not have the balls of a gold fish. All they care about is the perks and money they get.

harvey1 on January 28, 2013 at 10:47 AM

Besides invalidating every action taken by these agencies without a valid quorum, this decision ought to result in the illegally appointed persons being required to return all pay that they received.

This would tend to discourage persons in the future from accepting illegal nominations.

J Baustian on January 28, 2013 at 11:23 AM

It is not unprecedented to violate the Constitution deliberately, with good intention. In 1861, Abraham Lincoln used this path when he suspended habeas corpus in an effort to save the country during the civil war.

Translated: “We won, so Intercourse the Constitution!”

Del Dolemonte on January 28, 2013 at 10:26 AM

I’ve heard that argument before. Never understood it, since the Constitution clearly says:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

How is that a violation of The Constitution? Does the Civil War not count as rebellion? Really?

Fenris on January 28, 2013 at 12:26 PM

I find it curious (not) that no one in the media, in the course of sanctimoniously proclaiming how relatively few recess appointments Bark has made, compared to past presidents, has noted the number of “czars” he has appointed. These czars are unelected, not confirmed by the Senate, and are not answerable to anyone but The Won, and he alone directs their activities. Maybe someone should bring suit to test the legality of those appointments too. Just sayin’.

coppertop on January 28, 2013 at 1:03 PM

How can they step down when for all intents and purposes, they are unemployed and have been working fraudulently this entire time. They need to be packing boxes and returning their pay checks and benefits.

aniptofar on January 28, 2013 at 9:19 AM

Yes, I agree.

cptacek on January 28, 2013 at 1:19 PM

Would it be possible for someone to go back to the DC Court of Appeals and ask them to invalidate all rulings by this and any other board? It would seem pretty stupid to have to go to court for each and every ruling they have made.

cptacek on January 28, 2013 at 1:20 PM

^any other board that is in violation such as this.

cptacek on January 28, 2013 at 1:20 PM

These czars are unelected, not confirmed by the Senate, and are not answerable to anyone but The Won, and he alone directs their activities. Maybe someone should bring suit to test the legality of those appointments too. Just sayin’.

coppertop on January 28, 2013 at 1:03 PM

Has anybody ever figured out how many people are working for the “czars”, how much office space is occupied by the “czars” and their staff/employees…and how much all of it is costing the people of the United States to support these “pals of barry”?

It might be interesting to find out what they cost.

And – exactly what power they have in the government and what effect they have on the country.

Solaratov on January 28, 2013 at 2:31 PM

And, unless they refund their pay to the Treasury, they should be arrested for fraud!

Another Drew on January 28, 2013 at 3:08 PM

You can’t resign from a job the courts said you never had.

Ronnie on January 28, 2013 at 3:08 PM