The Heck with the Senate: Obama Skips 'Advise and Consent' in Naming 3 Members to NLRB

By Susan Jones | January 5, 2012 | 6:05am EST

President Barack Obama shakes hands with Richard Cordray before speaking about the economy, Wednesday, Jan. 4, 2012, at Shaker Heights High School in Shaker Heights, Ohio. In a defiant display of executive power, President Barack Obama on Wednesday will buck GOP opposition and name Cordray as the nation's chief consumer watchdog. Outraged Republican leaders in Congress suggested that courts would determine the appointment was illegal. (AP Photo/Haraz N. Ghanbari)

( - As part of his "We Can't Wait" campaign -- intended to make Congress look weak and ineffective -- President Barack Obama is making a power grab of questionable legality, critics say.

Not only did the president recess-appoint a consumer protection "czar" on Wednesday, he also recess-appointed three new members of his controversial National Labor Relations Board.

But, as Republican leaders argue, the Congress is not in recess. And in making the three NLRB appointments, Obama has ignored the written pleas of Republicans for "political and philosophical balance” on the labor board.

The three new members of Obama's pro-union NLRB are Sharon Block, a deputy assistant in the U.S. Labor Department who once worked with the late Sen. Ted Kennedy; Terence F. Flynn, chief counsel to NLRB Board Member Brian Hayes, a Republican; and Richard Griffin, the general counsel for the International Union of Operating Engineers. Griffin also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.

“The American people deserve to have qualified public servants fighting for them every day -- whether it is to enforce new consumer protections or uphold the rights of working Americans," Obama said in a statement announcing his four "recess" appointments on Wednesday. "We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that’s why I am proud to appoint these fine individuals to get to work for the American people.”

Republicans criticized the president's move on several levels:

"Today, the White House doubled down on its assault on the Constitution’s separation of powers -– circumventing the people’s representatives in Congress -- by not only appointing a new regulatory czar, but also new bureaucrats to the National Labor Relations Board to placate its big labor allies," said Sen. Orrin Hatch (R-Utah)."

The President put his own political future and the radical views of his far-left base ahead of constitutional government."

Hatch said Obama "will have to answer to the American people for this power grab."

Last month, Hatch and 46 other Senate Republicans sent a letter to Obama, urging him not to recess-appoint nominees to the NLRB:

"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," the Republican senators wrote. "Indeed, the very statutory design of the board is meant to ensure a basic level of bipartisanship in the appointment of members."

Republicans cited Obama's "controversial” recess of appointment of NLRB Board Member Craig Becker as an example of a nominee who was recess-appointed over the objections of the Senate. "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."

The Republicans urged Obama not to recess appoint any NLRB members - "especially during the mandatory adjournment between sessions of the 112th Congress, which will undoubtedly be very brief."

Doing so would "at the very least set a dangerous precedent that most certainly would 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."

Criticism of Obama's recess-appointments also came from House Republicans:

“President Obama’s stunning move to install not one but three new members to the National Labor Relations Board without a hearing or a vote in the United States Senate is an unprecedented abuse of power and an affront to the will of the American people," said Rep. John Kline (R-Minn.), chairman of the U.S. House Education and the Workforce Committee.

“For months, workers and employers have expressed outrage over the board’s job-destroying actions, and in response, the House of Representatives took definitive action to rein in the NLRB’s activist agenda through two pieces of bipartisan legislation. Now, the president has taken matters into his own hands, unilaterally selecting new board members without allowing the Senate or the public any opportunity to consider their qualifications for this important position."

Kline said every decision made by the board will be "tainted by the president's actions."

Rep. Phil Roe (R-Tenn.), who chairs the subcommittee on Health, Employment, Labor, and Pensions, also criticized Obama for ignoring the Senate's right to advise and consent on presidential appointments.

"These backdoor appointments are the exact opposite of the transparency that this administration promised,” Roe said. “The NLRB under President Obama has been a significant roadblock to job creation. I’m confident that these appointments signal more chaos for the American workforce.”

Republicans and pro-business groups were outraged last April, when the NLRB, prodded by a labor union, filed a complaint against the Boeing Company for its plan to transfer a second production line from Washington State to a non-union facility in South Carolina. Republicans called it an "attack" on right-to-work states.

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