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Court Rules Obama NLRB Appointments Unconstitutional (Read More…)

Jan 25, 2013 By Sarah Parnass

President Obama’s recess appointments to the National Labor Relations Board violated the Constitution, a federal court of appeals ruled today, also raising questions about Obama’s pick for head of the Consumer Financial Protection Board.

The court called the appointment of three members to the National Labor Relations Board in January 2012 “an unconstitutional act,” because it took place when the Senate was in an “intrasession” recess, rather than an “intersession” recess. President Obama appointed Richard Cordray to be head of the CFPB at the same time.
The recess was considered intrasession because of pro-forma sessions that Republican senators held during the Senate’s recess that month. Washington College of

Law Professor Stephen Vladeck characterized those sessions as “congressional dysfunction and congressional obstructionism,” as they prevented the president from making his pick for those positions.

“I think the point is that Congress should not be actively trying to thwart the president’s appointment power,” Vladeck told ABC News.

In defense of his appointments that day, White House spokesperson Dan Pfeiffer wrote in the White House blog,
“The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running.”

The court took issue with that, citing a 1976 case on campaign finance law:
“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. The checks and balances that the Constitution places on each branch of government serve as ‘self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.’”

The White House strongly disagreed with the court’s decision, calling it “novel and unprecedented.”

“It contradicts 150 years of practice by Democratic and Republican administrations,” White House Press Secretary Jay Carney told reporters at the daily press briefing. “So we respectfully but strongly disagree with the rulings.”

Carney was adamant that the decision would have limited implications. “If you look at the case, the court decided a case brought by a specific company, and the decision applies to that case. It does not apply more broadly than that,” he said.

“The decision that was put forward today had to do with one case, one company, one court. It does not have any impact… on [the NLRB’s] operations or functions or on the board itself. It has no bearing on Richard Cordray, and we, as I said, strongly disagree with it,” he added.

The Justice Department pushed back on the ruling.

“We disagree with the court’s ruling and believe that the president’s recess appointments are constitutionally sound,” a DOJ spokesperson said.

Republicans praised the ruling today.

House Speaker John Boehner called it “a victory for accountability in government.”

“The Obama administration has consistently used the NLRB to impose regulations that hurt our economy by fostering uncertainty in the workplace and telling businesses where they can and cannot create jobs,” Boehner wrote. “Instead of operating under a shroud of controversy, the NLRB should meet the highest standards of transparency, starting with having its members approved by the people’s representatives.”

Senate Minority Leader Mitch McConnell said the decision “reaffirmed that the Constitution is not an inconvenience but the law of the land, agreeing with the owners of a family-owned business who brought the case to the court.”

Sen. Orrin Hatch said the court’s ruling “will go a long way toward restoring the constitutional separation of powers.”

“Today’s ruling reaffirms that the Constitution is above political party or agenda, despite what the Obama Administration seems to think,” Hatch, R-Utah, wrote in a statement. “This wasn’t an activist decision or legislating from the bench. This was a court holding what the Constitution says – that a President may make a recess appointment only if the vacancy he would fill and the appointment occur during the same intersession recess.”
Boehner, Hatch and McConnell were part of a group of lawmakers who submitted an amicus brief to the case.

Executive Director of the NFIB Small Business Legal Center Karen Harned said her group was “thrilled” by the Court’s ruling.

“Small-business owners throughout the country have suffered under the unabashedly pro-union decisions handed down by the NLRB,” Harned wrote in a statement. “They deserve to be protected from unconstitutional acts that exacerbate the NLRB’s devolution from a neutral arbiter between labor and employers to a pro-union government agency.”

Georgetown Law Professor Susan Low Bloch said this ruling is important and that the case is likely to go to the Supreme Court.

“I see this as part of the larger battle between the president and the Senate on the whole confirmation process,” Bloch told ABC News Friday, “which that’s not just administrative agencies but judicial appointments, and it’s a very important issue.”

Vladeck agreed the case would be important for President Obama.

“If left undisturbed it will only encourage more of the shenanigans by Congress and the pro-forma sessions that precipitated this crisis in the first place,” Vladeck said. “I suspect that if the [Obama] administration does appeal this decision that will be one of their central points.”

Both professors agreed a final ruling against the constitutionality of the NRLB appointments could have implications for Cordray’s time as head of the CFPB and regulations placed on the financial sector during his tenure. President Obama nominated Cordray to serve a second term as CFPB director yesterday, renewing the Congressional battle over Cordray’s confirmation.

A separate case against the government challenging Cordray’s appointment was filed this summer. The court has not yet reached a decision in that case.

Posted by Admin on 01/26 at 08:43 AM


JANUARY 23, 2013

WASHINGTON (AP)—The nation’s labor unions suffered sharp declines in membership last year, the Bureau of Labor Statistics said Wednesday, led by losses in the public sector as cash-strapped state and local governments laid off workers and - in some cases - limited collective bargaining rights.

The union membership rate fell from 11.8 percent to 11.3 percent of all workers, the lowest level since the 1930s.

Total membership fell by about 400,000 workers to 14.4 million. More than half the loss - about 234,000 - came from government workers including teachers, firefighters and public administrators.

The losses add another blow to a labor movement already stretched thin by fighting efforts in states like Wisconsin, Indiana and Michigan to curb bargaining rights and weaken union clout.

But unions also saw losses in the private sector, even as the economy expanded modestly. That rate fell of membership fell from 6.9 percent to 6.6 percent, a troubling sign for the future of organized labor, as job growth has generally taken place at nonunion firms.

“To employers, it’s going to look like the labor movement is ready for a knockout punch,” said Gary Chaison, professor of industrial relations at Clark University in Worcester, Mass. “You can’t be a movement and get smaller.”

Unions have steadily lost members since their peak in the 1950s, when about one of every three workers was in a union. By 1983, roughly 20 percent of American workers were union members.

Losses in the public sector are hitting unions particularly hard since that has been one of the few areas where membership was growing over the past two decades. About 51 percent of union members work in government, where until recently, there had been little resistance to union organizing.

That began to change when Wisconsin Gov. Scott Walker signed a law in 2011 eliminating most union rights for government workers. The state lost about 46,000 union members last year, mostly in the public sector.

Union officials blame losses on the lingering effects of the recession, as well as GOP governors and state lawmakers who have sought to weaken union rights.

“Our still-struggling economy, weak laws and political as well as ideological assaults have taken a toll on union membership, and in the process have also imperiled economic security and good, middle class jobs,” said AFL-CIO President Richard Trumka.

In Indiana, where a new right-to-work law took effect last March, the state lost about 56,000 union members. The law prohibits unions from requiring workers to pay union fees, even if they benefit from a collective bargaining agreement. Michigan lawmakers approved a similar measure in December.

Another problem for unions is an aging membership that is not being replaced by younger members. By age, the union membership rate was highest among workers ages 55 to 64 (14.9 percent) and lowest among those ages 16 to 24 (4.2 percent).

In New York, the state with the highest union density, nearly one-quarter of the workforce belonged to a union. North Carolina had the lowest at 2.9 percent.
Among full-time wage and salary workers, union members in 2012 had median weekly earnings of $943, while those who were not union members earned $742.

Posted by Admin on 01/23 at 11:30 AM