Other courts

  • 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 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 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 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.