Saturday, February 2, 2013

NLRB's Homework Assignment

One of the reasons Washington, DC is so dysfunctional is that no one does their homework. The latest case in point, literally and figuratively, is Noel Canning v. National Labor Relations Board.

On January 25, 2013, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled that President Barack Obama's three recess appointments to the National Labor Relations Board (NLRB) on January 4, 2012 were unconstitutional. These appointments raised eyebrows because: (1) they were made just one day after the expiration of Member Craig Becker's term. This left the five-seat Board with only two confirmed members - Mark Pearce and Brian Hayes. This meant the NLRB lacked a quorum to issue decisions; and (2) the circumstance that would allow a President to make “Recess Appointments” under Article II, Section 2 of the U.S. Constitution did not exist, because the Congress was in Pro Forma Session, not in a formal recess.

The case centered on Noel Canning challenging a February 8, 2012 NLRB decision on the grounds that its quorum only existed with the presence of invalid recess appointments. The D.C. Court of Appeals unanimously agreed.

There are many potential ripple effects from this decision, including some expansive language clarifying the Constitution’s “recess appointment” clause, dramatically limiting the circumstances when a President was empowered to act. This case is definitely bound for the U.S. Supreme Court with the potential of an historic ruling on the separation of powers between the Executive and Legislative Branches. [For more background on this issue read my earlier columns -  and  ]

Overshadowing the broader Constitutional issues is the immediate issue of the continued operation of the NLRB in light of the ruling. The Court’s decision only invalidated the NLRB’s decision and stated the grounds. The Court did not issue any injunction against further NLRB activity.

Here is where everyone flunks their homework assignment. Today’s talk shows had every side tying themselves up in knots over whether it is legal to stop the NLRB’s activities, and if so, how. Some said cutting the pay of the NLRB Commissioners was one way to do it, but they did not know if had ever been done. Others said cutting pay was unconstitutional.

If only all these over paid talking heads, or their underpaid research staff, spent ten minutes on Google or simply knew someone who remembers the George Dunlop – Jamie Whitten fight of 1987. In 1987, Rep. Jamie L. Whitten, (D-MS) was chairman of the House Appropriations Committee. George Dunlop was Assistant Secretary for Environment and Natural Resources at the U.S. Department of Agriculture (USDA). Dunlop and Whitten had been antagonists since the days when Dunlop was Senator Jesse Helms' (R-NC) top agriculture staffer. Their battle came to a head in 1987 when Dunlop refused to attend one of Whitten’s hearings, opting to avoid another nasty and unproductive confrontation.

Whitten was not amused. The Chairman moved the FY 1988 USDA Appropriations bill through his subcommittee, the full Committee, and on to the House for consideration. It was soon discovered that FY1988 funding for Dunlop’s position had been omitted from the bill. Dunlop promptly met with Whitten, buried the hatchet, and funding for his position was added to the bill. Congress asserted its Constitutional power of the purse as a way of humbling a wayward Presidential appointee.

Thus, targeting positions through the Appropriations process is Constitutional. A little homework would have avoided all the “sturm und drang” on the talk shows. It also should serve as a guide for Republicans looking for ways to cut federal spending. There is nothing wrong with targeting specific programs, projects, positions, and offices to force the implementation of Inspector General and Government Accountability Office (GAO) recommendations. A much more rational way to deal with the debt instead of the meat axes unleashed through Sequestration.

Amazing where completing a homework assignment can lead.


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