President Obama is planning to announce today that, in addition to his recess appointment of former Ohio Attorney General Richard Cordray as the first director of the Consumer Financial Protection Bureau, he will also use his recess appointment powers to place Department of Labor Attorney Sharon Block, labor lawyer Richard Griffin, and NLRB counsel Terence Flynn to the National Labor Relations Board.
Like the CFPB, Republicans have spent the past year blocking nominations to the NLRB in an effort to keep the agency from functioning. Those efforts would have paid off soon, since after Craig Becker’s term on the board expired this week, the NLRB would have been reduced to two members, which is the number it had for more than two years from 2008 to 2010. This effectively shuts down the board, since the Supreme Court ruled in 2010 that two members does not constitute a legal quorum, and thus, a two-member board can’t make binding rulings.
All 47 Senate Republicans have warned Obama of a “constitutional conflict” should he choose to use his recess appointment powers — authority he is well within his right to use, as ThinkProgress’ Ian Millhiser noted yesterday — but it was Chief Justice John Roberts, a noted conservative, who suggested the president should make recess appointments to keep the NLRB functioning, as ThinkProgress reported in 2010.
Obama’s appointment of Block, Flynn, and Griffin is important, too, because it boosts the board’s membership to five, protecting its quorum even if member Brian Hayes follows through on his threats to quit. Preserving its right to quorum ensures that its rulings will not be thrown out on legal challenges, as more than 600 cases were by the Roberts Court in 2010.
Republicans have shown outrage at Obama for using his recess appointment powers with Consumer Financial Protection Bureau director Richard Cordray, and similar outrage is likely to follow the news of the NLRB appointments. But the past three Republican presidents also made recess appointments to the NLRB. Ronald Reagan and George H.W. Bush each made three recess appointments to the NLRB, while George W. Bush made seven such appointments.