Labor law

  • 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.

  • May 15, 2013
    Guest Post

    by Anne Marie Lofaso, Associate Dean for Faculty Research & Development, Professor of Law, West Virginia University College of Law

    The Senate Health, Education, Labor and Pensions (HELP) Committee will hold hearings tomorrow on President Obama’s five nominees to the National Labor Relations Board (NLRB or Board). So why, when there are so many vitally important issues facing our country – the enormous budget deficit and sequester being only two of those issues – is the Senate spending its time on the confirmation of five public servants?

    Since the 1947 Taft-Hartley amendments, the Board has been comprised of five members, appointed by the president with the advice and consent of the Senate. For years, Senate Democrats and Republicans held to a gentlemen’s agreement that the president would select three Board members from the majority party and two Board members from the minority party. Over the years, these nominations became increasingly more political, with administrative decisions predictably oscillating between pro-business and pro-labor-enforcement results, depending on which party held control of the Executive Branch.

    In an administrative agency that tends to make law by adjudication rather than rulemaking, this back-and-forth between reasonable interpretations of the National Labor Relations Act (NLRA or Act) is both lawful and par for the course. Those in power are privileged to re-interpret the statute that they are charged by Congress with administering so long as the following conditions are met: (1) a case comes along that raises the issue; (2) their statutory interpretation is reasonable and permissible/constitutional; and (3) they give reasons for changing their mind.

  • May 14, 2013
    Guest Post

    by Norman J. Ornstein, Resident Scholar, American Enterprise Institute (AEI). Ornstein and Thomas E. Mann are authors of It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism. 

    Few members of the Senate have professed more concern about dysfunction in the nomination and confirmation process than Sen. Lamar Alexander (R-Tenn.). Alexander is a wonk who cares about policy-making and problem solving. And, most importantly, it gets personal with Lamar -- he had his own unpleasant experience with the Senate's long-broken confirmation process when he came up as a nominee for Secretary of Education. Commendably, Lamar worked in a bipartisan fashion last year, with Sens. Susan Collins (R-Maine), Joe Lieberman (I-Conn.), Chuck Schumer (D-N.Y.) and others to streamline the process by removing a number of lower level executive nominees from the requirement for Senate confirmation.

    What has happened to that Lamar Alexander? His persona seems to have been kidnapped and replaced by partisan warrior Lamar Alexander, participating in a series of abuses of the confirmation process that are both denying a president elected by a wide margin from selecting his own people to serve and attempting to block agencies from being able to function by filibustering or applying blanket holds to clearly qualified nominees -- what Tom Mann and I have called the new nullification.

    We have seen the latter both with the NLRB, ever since Obama became president in 2009, and the Center for Medicare and Medicaid Services, the agency charged with implementing Obamacare, since the Affordable Care Act was enacted. Faced with the prospect of a National Labor Relations Board actually functioning and making decisions that reflected the majority, Republicans in the Senate filibustered to block any nominees, no matter how qualified, to prevent the agency from having a quorum. Frustrated after a long period of such behavior, Obama used recess appointments to get the agency working-- and then had to deal with a sweeping appeals court decision, written by the highly partisan judge David Sentelle, the same judge who fired competent and fair-minded Whitewater Independent Counsel Robert Fiske and replaced him with Kenneth Starr, outlawing almost all recess appointments. The decision is under appeal, but Alexander is calling for the removal of Obama-named commissioners, and also calling for them to be blocked from re-nomination in the future, before the court case has been finally litigated. 

  • May 14, 2013
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    Justice delayed is justice denied. This commonly used axiom best describes the enforcement of the National Labor Relations Act since 2007. For 27 months beginning in late 2007, the enforcing agency, the National Labor Relations Board operated with only two of its five positions filled as a result of legislative paralysis and lack of action by the executive branch.

    In June 2010, the Supreme Court, in New Process Steel v. NLRB, invalidated over 600 cases decided by the Board during that time, holding that the delegation to power to the two members before the expiration of a third member’s term in 2007 was invalid. The Board must have at least three members to act, according to the Court. 

    Maintaining confirmed members on the Board has proved to be extremely challenging in recent years.  Nominations have not received high priority and confirmation has proved extraordinarily difficult, for many of the same reasons that nominations to other agencies and federal courts have failed.

    As a consequence of the inability to obtain confirmation of nominees, President Obama has resorted to recess appointments, like many presidents before him. Yet the D.C. Circuit cast serious doubt on the tactic in its unprecedented January 2013 decision in Noel Canning v. NLRB, which held the most recent recess appointments invalid because the Senate was not in full recess between sessions.

    The NLRB currently has only three members and only one of those is not a recent recess appointee subject to the Noel Canning decision. The sole confirmed member’s term expires in August.

  • May 13, 2013

    by Jeremy Leaming

    Beyond barking about alleged Obama administration ethical lapses, congressional Republicans are continuing to cultivate the primary purpose of their agenda – obstruct, hobble and otherwise prevent all three branches of government from functioning.

    Sen. Minority Leader Mitch McConnell (R-K.Y.) early in President Obama’s first term told a right-wing gathering that Republicans’ primary goal was to prevent a second Obama term. Obviously that goal was not met.

    Nevertheless, the Republican Party, which has grown even more exclusive, largely concerning itself with the interests of the super wealthy or corporate interests, is bent on doing everything it can to ensure that any efforts to help the middle class and the poor do not make much headway.

    One way to do this is to fight efforts to change the make-up of the federal courts, to ensure they remain as business friendly as possible. That’s part of the reason why Senate Republicans have obstructed Obama’s judicial nominations and created a crisis on the federal bench with vacancies hovering over 80 for years. As noted here the president has not been able to place a judge on the august U.S. Court of Appeals for the District of Columbia Circuit, and there are four vacancies on the 11-member court. Sen. Chuck Grassley (R-Iowa), ranking member of the Judiciary Committee, has introduced legislation to cut the number of judges on the court to 8.

    But the obstruction doesn’t stop there. The federal agency charged with carrying out the National Labor Relations Act has been under a constant stream of attack by Republican senators. The five-member board cannot operate without a quorum and after the Republican-controlled D.C. Circuit ruled earlier this year that two of the Board’s members, Richard Griffin and Sharon Block, were improperly appointed during a Senate break, Sen. Lamar Alexander (R-Tenn.) has been calling for them to resign. Doing so would effectively shutter the National Labor Relations Board until the appeals court process runs its course. And by the way, the D.C. Circuit’s opinion in Canning has been widely blasted as resting on wobbly legal grounds. Moreover, the opinion runs counter to other Circuit court rulings on recess appointments, and the Obama administration has appealed it the U.S. Supreme Court. The president has not asked for their resignations, nor should he.