ACSBlog

  • May 17, 2013
    Guest Post

    by Senator Tom Harkin (D-Iowa). Sen. Harkin is the Chairman of the Health, Education, Labor, and Pensions Committee.

    This week, the Senate Health, Education, Labor, and Pensions (HELP) Committee, which I chair, held a hearing on the full slate of five nominees to the National Labor Relations Board (NLRB): Mark Gaston Pearce, Richard F. Griffin, Jr., Sharon Block, Harry I. Johnson III, and Philip Andrew Miscimarra. These are vitally important nominations because the enforcement of our labor laws is essential to the growth of a strong middle class and to the smooth functioning of businesses large and small across the country. Without Congressional action, the NLRB will go dark in August -- which could have a truly troubling impact on our economy.

    Workers and employers alike rely on the fact that the Board will enforce our labor laws, and enforce contracts between labor and management.  For the thousands of American workers fired every year for trying to organize a union in their workplace, an NLRB out of commission means that those workers would have to wait years before they could get their job back or any back pay for lost wages. From the business perspective, the NLRB also ensures that unions do not step outside the law in their interactions with workers or employers. Perhaps that is why a Senior Counsel to the National Federal of Independent Businesses (NFIB) said that “to have the Board totally shut down would be a travesty.”

    Despite this agreement on the importance of the Board’s operations, in recent years, Congressional Republicans have waged unprecedented attacks on the NLRB.  While it appears that their real goal might be to repeal the National Labor Relations Act altogether, because they know that an attempt to repeal the law directly would surely fail, they have worked instead to dismantle the Board by attempting to hold up nominees or strip its funding. In the last Congress, House Republicans launched a series of efforts to shutter the NLRB, including voting to defund the Board entirely, and proposing a budget to force the Board to furlough all of its employees for most of 2011. Republicans have also proposed bills to abolish the NLRB and bills to limit its ability to enforce decisions and promulgate regulations.

    Of course, these efforts to undermine the Board are all part of a larger Republican assault on the unions and on collective bargaining in states like Ohio, Wisconsin, and Michigan.  These attacks don’t just hurt unions -- they undermine the very existence of the American middle class.

  • May 17, 2013

    by Jeremy Leaming

    The Rooney Rule, which has helped promote diversity in the NFL coaching and managerial ranks, should also be expanded in corporate America, says Robert L. Johnson, founder of Black Entertainment Television.

    The Washington Post reports that Johnson and other African-American and Latino corporate leaders are calling on more companies to “voluntarily embrace a plan to interview at least two qualified black or Hispanic candidates for every job at the vice president level or higher.”

    The plan is based, The Post reports, on the NFL’s Rooney Rule that requires football teams to interview one or more minority candidates for head coaching and general manager openings. Cyrus Mehri, a founding partner of Mehri & Skalet, PLLC, and the late Johnnie L. Cochran Jr. were instrumental in the NFL’s implementation of the Rooney Rule.

    Johnson told The Post that the business leaders have tried to get the Obama administration to help push more companies to adopt the rule and are now taking more aggressive actions on their own to influence more corporations. Johnson (pictured) said the group of business leaders would urge the U.S. Chamber of Commerce and the Business Roundtable to get behind the push for an expanded use of a Rooney-type rule in corporate America.

    Luis Ramirez, president and chief executive of Global Power, told The Post, “We need people who have diverse backgrounds and experiences to add to the populations of executives and corporate board members.”

  • May 16, 2013

    by E. Sebastian Arduengo

    A bit of good news emerged earlier today from the Senate Judiciary Committee, where Sri Srinivasan’s nomination to the D.C. Circuit Court of Appeals was unanimously approved.

    This puts Srinivasan, the principal deputy solicitor general, a step closer to a judgeship that he was originally a nominated for in June of last year. Showing how distorted the nominations process has become, what made this story unusual wasn’t the nearly one-year long wait he endured (unfortunately such waits are now so commonplace that they don’t draw much mention), rather it was how he was unanimously approved. In today’s Senate such bipartisan actions are rare.

    While this was a significant win for the Obama administration, it comes amidst growing obstructionism of executive branch nominations at all levels. This obstructionism has been so spectacularly effective that despite the fact that there’ve been three vacancies on the D.C. Circuit for most of the Obama Presidency, he has thus far been unable to confirm any judges to the court. His first choice, New York Lawyer Catlin Halligan, was filibustered twice by Senate Republicans, even though her qualifications were exceptional and had supporters on both sides of the aisle.

    Meanwhile, the Republican appointees on the D.C. Circuit continue to rule against government regulation and worker’s rights. Two weeks ago, the court struck down a National Labor Relations Board (NLRB) rule requiring employers to post notices containing information about workers’ rights to unionize. The decision was par for the course for the Court, which also ruled that recess appointments to the NLRB were unconstitutional, struck down an Environmental Protection Agency rule intended to control air pollution that crosses state lines, and openly flouted Supreme Court precedent on national security. It all adds up to a Court that’s the most business-friendly (and powerful) in the country, and Senate Republicans have fought to keep it that way.

  • May 16, 2013

    by Jeremy Leaming

    Like his predecessor President Obama has embraced an aggressive, mostly secret and, at times, constitutionally suspect approach to waging a never-ending war on terror.

    Unlike its predecessor, the Obama administration has obsessively investigated leaks of information surrounding some of its counterterrorism efforts. The administration has launched at least six cases of alleged leaks, including one involving a foiled terrorist plot in Yemen that The Associated Press reported on last spring. As part of that investigation the Department of Justice secretly gathered and culled through phone records of AP reporters.

    Going on the information we have now it appears that the First Amendment, which protects freedom of speech including press from government interference, was too easily shunted aside in an over-the-top investigation of a leak. The AP was given no chance to challenge a government search of its phone records and have a judge decide whether national security interests trumped freedom of speech in this instance. Yes, Attorney General Eric Holder claims the leak was one of the most egregious he has seen in a long, long time. But he doesn’t explain how it was so terribly egregious, nor do the facts as we know them now support his sweeping assertion.

    And today, during a press conference, President Obama hardly appeared fazed by the criticism of the DOJ’s tactics, decrying leaks of counterterrorism efforts. “Leaks related to national security can put people at risk, they can put men and women in uniform that I’ve sent into the battlefield at risk,” he said.

    But the May 7, 2012 reporting by the AP, had, according to its president, Gary Pruitt, been held until the White House assured the AP that “national security concerns" were no longer an issue. Pruitt added, “Indeed the White House was preparing to publicly announce that the bomb plot had been foiled.”  

    Earlier this week The New York Times Editorial Board hammered the administration for its “zeal” for going after persons accused of leaking national security information. In the AP matter, The Times Editorial Board said the administration had offered no “credible justification for secretly combing through the phone records of reporters and editors at The Associated Press in what looks like a fishing expedition for sources and an effort to frighten off whistle-blowers.”

    It’s rather lame to argue that just because Republicans howled loudly over the AP coverage of the foiled terrorist plot in Yemen that the DOJ’s obnoxious action of spying on the AP was somewhat mitigated. Moreover, it’s not like this administration has needed prodding to aggressively and obsessively go after alleged leakers.

  • May 15, 2013
    Guest Post

    by Peter M. Shane, Jacob E. Davis & Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University

    Much of my writing on the constitutional separation of powers and checks and balances in operation is directed at the central importance of informal norms to effective government. Chief Justice Hughes famously wrote that “[b]ehind the words of the constitutional provisions are postulates which limit and control.” A subtle, but intimately related point is that our constitutional plan cannot work unless the competing institutions (and those in charge of them) agree on some common overarching values and on certain general understandings as to shared aims and the limits of unilateral power.

    If you think the text of the Constitution provides sufficient guidance by itself to keep the government operating, do a few thought experiments. Imagine that the Senate and House had adopted a custom early on that each would unanimously reapprove any legislation returned to Congress with a presidential veto. Nothing in the Constitution forbids such a practice. 

    Imagine that Congress had read the Constitution to allow the House to impeach presidents for acts of lesser magnitude than “high Crimes or Misdemeanors,” providing that conviction carried some punishment short of removal. Don’t believe the constitutional text permits this? Read it. 

    These things did not happen, I presume, because Congress recognized that such “customs” would eviscerate the contemplated co-equality of the executive and legislative branches. But not a word of constitutional text would have cast doubt on these practices.

    What we are witnessing today in depressing, even contemptible form is a GOP-led congressional subversion of two of the most elementary norms on which our government rests. The first is the proposition that the government should actually function.  Agencies Congress has created and to which it has delegated administrative responsibilities should discharge those responsibilities efficiently and effectively. The second is that the president is primarily responsible for achieving effective administration and, toward that end, he is entitled to significant, if not controlling deference by the Senate in his choice of individuals to head government agencies.