Sen. Mike Johanns has joined two other senators to sponsor legislation to stop the National Labor Relations Board from acting until a dispute concerning the appointment of its members is resolved.
The bill would also block the Consumer Financial Protection Bureau from acting.
Johanns points out a three-judge panel of the United States Circuit Court of Appeals in Washington, D.C. ruled President Barack Obama violated the Constitution in making recess appointments to the boards when the Senate wasn’t technically in recess. Johanns says the administration could ask the full court to hear the case.
“I doubt that that will happen, because there was no dissent. So, there isn’t much that the Obama Administration can grab onto and say, look one of your colleagues had a better approach to this,” Johanns says. “It therefore seems likely that what they will do is ask that the case go up to the Supreme Court.”
Johanns says the president will be taking a risk in pressing the case in the courts.
“If on the other hand he goes to the Supreme Court and the Supreme Court agrees with the D.C. circuit; number one, the people that were confirmed are out and number two, all of the decisions that they’ve made, I believe, will be void.”
Johanns, Lamar Alexander of Tennessee and John Cornyn of Texas have introduced legislation prohibiting the National Labor Relations Board (NLRB) and Consumer Financial Protection Bureau (CFPB) from enforcing or implementing decisions and regulations without a constitutionally confirmed board or director. All three are Republicans. President Obama is a Democrat. Democrats control the Senate.
Johanns says the administration doesn’t have to go the appellate route.
“Now, there’s an even more direct way of dealing with this. Come to the Senate and go through the lawful process,” Johanns says. “That just seems so obvious to me and it seems like something they should have done a year ago.”
At dispute is President Obama’s appointment of Sharon Block, Richard Griffin, and Terence Flynn (who resigned in May) to the NLRB and Richard Cordray to head the CFPB on January 4, 2011. The court ruled the president could use the power of recess appointment when the Senate technically was in session.
AUDIO: Sen. Mike Johanns discusses disputed appointments to NLRB and CFPB. [2:15]