There’s a common and compelling logic to President Obama’s recess appointments today of Richard Cordray to head the Consumer Financial Protection Board and of three appointees to the National Labor Relations Board. In the case of both boards, the appointments were necessary if the boards were to function at al—the very reason that Senate Republicans had made clear their determination to appoint nobody at all to the two boards.
In December, Republicans filibustered Cordray’s nomination, stating clearly that they had nothing in particular against Cordray but were opposed to the existence of the board itself, which had come into being as part of the Dodd-Frank Financial Reform Act passed by Congress in 2010. Lacking the votes to repeal the act, Republicans chose instead to kill the board by refusing to confirm a director, without which the board could not fully, or even substantially, function.
At the NLRB, the expiration of board member Craig Becker’s term at the end of December left the board, which is supposed to have five members, with just two. In recent decades, as American business has increasingly refused to recognize unions’ right to exist, all appointments to the one board that ensures workers’ right to unionize have been politically charged. Ronald Reagan and both Presidents Bush made recess appointments to the board to overcome congressional opposition to their choices. During the last years of the more recent Bush’s term, the board was down to just two members, and last year, the Supreme Court ruled that a two-member board, lacking a quorum, had no power to make or enforce any rulings.
Congressional Republicans have raged at the board over the past year over General Counsel Lafe Solomon’s decision to hear a case testing whether Boeing could relocate a plant in response to strike threats (the case has since been withdrawn). Becker’s departure would have enabled Obama to submit three candidates for board membership– two Democrats, one Republican—to the Senate for confirmation, but GOP Senate leaders made clear that they wanted to keep the board’s size down to an impotent two. Had they succeeded, any company or union could have appealed an election result or any other matter to the board with the assurance that the board could do nothing about the appeal. In essence, employers could have forestalled their workers’ decision to unionize indefinitely.
Ironically, when Republicans in 2009 and 2010 successfully opposed the Employee Free Choice Act, which would have enabled workers to unionize by submitting signed cards and foregoing a board-supervised election, they argued that such elections were essential to democratic industrial relations. Now, however, they support bringing the operations of the board that runs those elections to a halt by declining to staff it.
As I’ve written before, the Republicans’ policy is one of agency-cide—the killing of a federal agency they don’t like by refusing to confirm the appointments required to make it run. It’s a back-door way to repeal federal law establishing such agencies, a course the GOP has taken precisely because it lacks the votes to dis-establish them. By making his recess appointments today, Obama hasn’t, as Republicans allege, arrogated congressional power to himself. Rather, he’s restored the right of majorities that enact legislation not to have that legislation negated by congressional minorities. He’s also sending one more signal that the days of his accommodating Republican rejectionists are over.
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