Today the Committee on Education and the Workforce hosted a hearing on the President’s January recent recess appointments to the National Labor Relations Board.  To refresh everyone’s memory, President Obama made “recess” appointments to the NLRB early last month, while the Senate was not actually in recess. The Senate was in what is called a pro-forma session. In the context of appointees, longstanding Senate procedures consider pro-forma recess nearly identical to standard recess. Therefore, recess appointments cannot be made at this time.

Recently, several different organizations have decided to file suits against the administration for these illegal appointments. During yesterday’s hearing, four witnesses were called to give different legal perspectives.  All four witnesses were lawyers, one served on the NLRB, and the others have worked in this area for several years. 

One witness, Dennis Devaney, said this was just bad policy by the president, but went on to explain that litigation would take 2-3 years to make its way to the Supreme Court. Out of convenience, he argued that it may be best to just allow these appointments to save time and money.  The fourth witness, Stefan Marculewicz, supported this assertion.  He also explained that it would be hard to overturn any decision made by the NLRB in the meantime.

The last witness, Susan Davis, made the point that the NLRB has far-reaching power the agency determines nearly all aspects of the employer-union relationship.   As quorum—three board members–is necessary to pass this legislation. Although there were only 2 people on the board before these appointments, Ms. Davis believed it was necessary that Obama make these appointments even though they weren’t properly vetted by the Senate (and didn’t even pass a proper background check). This however, is wrong. The fact the NLRB has such power necessitates a proper vetting process.

Additionally, the agency is not completely neutered without a quorum—rulemakings are just prohibited.

During a round of questions, it was clear that these appointments were not supported by most sitting members on the committee.  The Senate makes their own rules and chose to be in session the day President Obama made his recess appointments.  It was also made clear in the question period that vetting of appointees is extremely important to the continued democratic nature of the U.S., where the legislature provides a check on executive powers. 

With his actions, President Obama clearly overstepped his role as president.  It was not his right to make recess appointments to the NLRB when the Senate wasn’t in recess.  The appointees at the very least need to be cleared by a background check, and should have been properly vetted by the Senate, as that is their duty in providing a check on Presidential powers.