Senate GOP to Obama: You better not make recess appointments to the NLRB

The men and women of Congress haven’t yet adjourned for Christmas and Barack Obama hasn’t yet boarded Air Force One to begin his $4 million trip to Hawaii, but Republicans in the Senate have already begun to think of what might happen while they’re in recess. Namely, they’ve realized the president might appoint a couple of partisans to the National Labor Relations Board when they’re not around to advise and consent. So, all 47 Republican senators signed and sent a letter to the president admonishing him not to do that. They write:

Appointments to the NLRB have traditionally been made through prior agreement of both parties to ensure that any group of nominees placed on the board represents an appropriate political and philosophical balance. Indeed, the very statutory design of the Board is meant to ensure a basic level of bipartisanship in the appointment of Members. As you are undoubtedly aware, appointments to Board that depart from this tradition have resulted in some of the most contentious, divisive struggles we face in the Senate. Your controversial recess appointment of NLRB Member Craig Becker is an example of an NLRB nominee having been appointed over the objection of the Senate and the result of that decision has been unending controversy throughout Member Becker’s entire term on the Board, which has undermined the credibility of the entire NLRB.

We urge you to avoid attempting to give your latest NLRB nominees – Ms. [Sharon] Block and Mr. [Richard] Griffin – recess appointments at any point, especially during the mandatory adjournment between sessions of the 112th Congress, which will undoubtedly be very brief. While some have publicly suggested doing so would be an appropriate course of action with regard to other nominations, it would, at the very least, set a dangerous precedent that would most certainly be exploited in future cases to further marginalize the Senate’s role in confirming nominees and could needlessly provoke a constitutional conflict between the Senate and the White House.

The senators are right to be concerned: President Obama has a history of using his recess appointment power to install particularly controversial officials (Craig Becker, anyone? Donald Berwick? Phillip Coyle?). Block and Griffin look to be no better:

Block is a former aide to the late Sen. Edward Kennedy (D-Mass.) and a senior Labor Department official who used to work at the NLRB. Griffin is the general counsel for the International Union of Operating Engineers. Obama nominated them to the board last week.

Still, this is less about the appointees themselves than it is about Obama’s unnerving tendency to “go it alone.” Unfortunately, he has more justification than usual to make these recess appointments. The term of his previous NLRB recess appointee, Craig Becker, is about to expire, and, without a quorum, the NLRB would be unable to function. That’s fine by me — but, the point is, Obama can invoke that reality as his reason for recess appointments. If the president cares at all about keeping faith with the Senate, though, he’ll respect their request. As the GOP senators point out, this recess is likely to be a short one. Surely these appointments can wait.