Yesterday the news broke that the Supreme Court of the United States had issued a ruling on whether or not the President could make “recess appointments.” A recess appointment is when the Senate is officially in “recess,” and the President nominates someone to an official Executive Branch position, like the National Labor Relations Board.
“Today’s ruling clears up the legal landscape on a question both Democratic and Republican presidents have faced for decades – the circumstances under which the United States Constitution allows them to make temporary recess appointments to executive branch positions,” said AFL-CIO President Richard Trumka.
“President Obama made the recess appointments to the NLRB because obstructionism by Republican senators was about to make the National Labor Relations Board inoperable due to a lack of NLRB members,” continued Trumka. “The President did the right thing and acted on solid legal authority in making these appointments. Had he not acted, millions of workers would have been deprived of their rights under our labor laws.”
This ruling did clear up a few things:
1) The President can make a recess appointment if the recess is longer than ten (10) days.
2) They ruled that the parliamentary trick of holding “pro-forma” session – a session where nothing gets done but technically there is a session – would be enough to break to officially keep the Senate “in session”, and would reset the clock on the any recess timetables. The effectively means that if the Senate held a “pro-forma” session every nine days during long breaks, the President would not make any recess appointments.
3) They ruled that President Obama appointments to the NLRB were unconstitutional. This means all the cases where these NLRB appointees issued a ruling (before they were fully confirmed by the Senate), are now invalid.
Trumka pointed to the filibuster rule change that is allowing appointments to move through better than they were before. “Fortunately Senate leaders successfully changed Senate rules so that Executive Branch nominees can now be confirmed by a majority of the Senate and cannot be blocked by a minority of senators.”
“While today we have a fully functioning National Labor Relations Board to act on behalf of workers, this ruling invalidates countless other NLRB rulings that must now be decided again,” stated Randi Weingarten, President of the American Federation of Teachers. “This not only puts an additional burden on the NLRB, it creates uncertainty and additional pain for those workers who believed they had found justice. We are confident the NLRB will act swiftly on these cases”
Weingarten was very critical of the real people who were inhibiting the appointments to the NLRB.
“Let’s be clear—this case was the result of Republicans’ relentless obstructionism and their efforts to interfere with President Obama’s ability to make our government work and ensure the NLRB functions on behalf of working people,” continued Weingarten. “While the Senate reached a temporary compromise on presidential appointments, this ruling could embolden a minority of senators to take action in the future to prevent the president from making the appointments needed to ensure our democracy can function fully on behalf of the American people.”
The Communication Workers of America have been working diligently over the past few years to bring awareness to the problems with the antiquated filibuster rule that is allowing the minority to block important pieces of legislation and major appointments. They used their massive network of members to start a national conversation to “Fix the Senate” and pushed to “Give Us Five” referring to a full five member NLRB.
CWA released the following statement
Today’s Supreme decision is a sharp reminder that the U.S. Senate functions under archaic procedures that must change. That’s especially true of the rule requiring a super-majority, or 60 votes, for the Senate to recess.
The Senate rules are at the heart of this decision and the Constitution is clear that the Senate has the right to set its own rules.
In every other democratic meeting, from the local city council to any major parliamentary body, proceedings are recessed by a majority vote. Only the U.S. Senate requires a super-majority to proceed to debate on most motions, legislation and including the motion to recess.
We have seen the consequences of this rule. It’s been a key tactic used by the Senate minority to block confirmation of the president’s executive and judicial nominations. Senate Minority Leader Mitch McConnell made his party’s intentions clear when he said his goal was to make President Obama a one-term president. When that didn’t succeed, the Senate minority stepped up a campaign of delay and obstruction, of appointments and any progressive legislative advances. The minority’s strategy of refusing to proceed to a vote for any recess has made a mockery of the Senate’s role in government.
The Senate’s constitutional duty is to review the president’s nominees through “advice and consent” – not use parliamentary tricks to impede his policy agenda.
For thousands of workers, this decision has real-life consequences. Some 120 decisions made by the National Labor Relations Board in the period contested by the Noel Canning lawsuit may be challenged and justice for thousands of workers will be delayed, and in practice, denied.
The need for real Senate rules reform has never been clearer, or more urgent. CWA and our allies, working together in the Democracy Initiative, are keeping up the fight for Senate rules changes. Critical is an end to the super-majority vote requirement that blocks debate and discussion of nearly all Senate business, even the motion to recess.
We need a functioning government if we are to ever recover from this economic slump, and the bitter partisanship that is crippling Washington. It just may be time to go “nuclear” on the filibuster rule, so we can make some real progress.