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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