Obama renominates NLRB members who were ruled invalid in court

The Hill

By Kevin Bogardus

President Obama on Wednesday asked the Senate to confirm two members of the National Labor Relations Board (NLRB) whose recess appointments were ruled unconstitutional.

Obama sent the Senate a package of nominations that included NLRB Members Sharon Block and Richard Griffin, who were both installed at the agency in a show of power that was ruled invalid by a federal court.

The U.S. Court of Appeals for the D.C. Circuit ruled last month that Block and Griffin’s recess appointments to the NLRB were unconstitutional. Since then, Republicans have sought to challenge decisions made by the labor board during the tenures of Block and Griffin, which began in January 2012.

Forty GOP senators sent a letter Block and Griffin last month urging them to step down. Sens. Lamar Alexander (R-Tenn.), John Cornyn (R-Texas) and Mike Johanns (R-Neb.) have also introduced legislation that would freeze work at the NLRB and the Consumer Financial Protection Bureau (CFPB) due to the controversy over the recess appointments. 

The White House said it disagrees with the court ruling. The administration is expected to appeal the decision.

At the time of the recess appointments, the Senate was holding pro forma sessions to prevent the president from acting. The Obama administration has argued the Senate was actually in recess at the time.

Republicans and business groups protested the move and fought back in court. The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace joined the case last year, arguing the recess appointments were not valid.

Included in the nominations sent to the Senate was Richard Cordray, the head of the CFPB. Cordray was recess appointed at the same time as Block and Griffin.

Critics of the consumer bureau argue the court ruling against the NLRB casts doubt on the legality of Cordray’s position, which is being challenged in a separate lawsuit.

Obama had said last month that he planned to renominate Cordray to the post.

Sen. Tom Harkin (R-Iowa), chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, said on Wednesday that he was “pleased” with Block and Griffin being re-nominated to the NLRB. Further, he hoped that Obama would nominate two new GOP members and re-nominate NLRB Chairman Mark Pearce as well. Harkin pledged “to give swift consideration” to a full package of five NLRB nominees as chairman of the Senate HELP Committee.

On Wednesday, several House Republican leaders — including Speaker John Boehner (R-Ohio), House Majority Leader Eric Cantor (R-Va.), House Majority Whip Kevin McCarthy (R-Calif.) and Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee — sent a letter to the president asking him to nominate “four qualified individuals” to the NLRB in order to form a quorum at the labor board.

The group of lawmakers, which also included House Republican Conference Chairwoman Cathy McMorris Rodgers (R-Ky.) and Rep. Phil Roe (R-Tenn.), also sent a letter to NLRB Chairman Mark Pearce on Wednesday saying that the labor board should cease all activity until the Supreme Court rules on the appeals court’s decision.

With Block and Griffin’s recess appointments ruled unconstitutional last month, the GOP lawmakers argue that the board doesn’t have a quorum and any decision it now makes will be on shaky legal ground. Pearce has said the labor board would continue to operate despite the court ruling.

The case is getting close attention from Republicans.

On Tuesday, Miguel Estrada, who filed an amicus brief on behalf of Senate Republicans, briefed GOP senators on the lawsuit. Senate Minority Leader Mitch McConnell (R-Ky.) said Estrada believes it’s likely the Supreme Court will review the case, according to a McConnell spokesman.

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