Thread: Obama appointments no way to run a democracy

washingtonexaminer.com
opinion
By: Diana Furchtgott-Roth
01/12/12 8:05 PM

On Thursday the Justice Department issued an opinion dated Jan. 6, signed by Assistant Attorney General Virginia Seitz, purporting to justify President Obama's Jan. 4 recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.

It states that the president has authority to make recess appointments during the period between Jan. 3 and Jan. 23, because, even though the Senate says it is in session, it is actually not in session.

"The President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments," Seitz concludes.

Whether Obama has powers to decide what functions the Senate can perform when it's in session is for the Senate and lawyers to decide. But one issue is clear -- the Senate cannot confirm candidates if the committee does not have the paperwork.

Two NLRB appointees, Democrats Sharon Block and Richard Griffin, were nominated on Dec. 15, 2011, the day before Congress adjourned. Their financial and ethics forms did not accompany the nomination, and even today have not yet reached the committee in charge of confirming them, the Senate Committee on Health, Education, Labor and Pensions.

The Republican appointee, Terence Flynn, was nominated in January 2011, and his paperwork was complete.

For confirmation before the Senate committee, nominees are required to submit a two-part committee form. Part 1 contains biographical information, campaign donations and conflicts of interest. Part 2 has financial information, such as assets, tax compliance, and civil and criminal investigations.

Obama cannot say that Congress refused to act on his NLRB nominees when materials for confirmation are not available. The committee cannot act on a nominee until five days after the forms are received.

As New York University Law School professor Richard Epstein wrote on Ricochet.com on Thursday, "Faced with these serious institutional irregularities, it is utterly misguided to strengthen the hand of the President, and make it a routine practice that -- since the Senate must sleep -- the President can make these short term appointments with long term adverse consequences for the integrity of public offices and for the continuity of service that is needed in those offices."

Information in forms sometimes leads to withdrawal of nominees, such as Zoe Baird, nominee for Attorney General under President Clinton, for nonpayment of nanny taxes, or Linda Chavez, nominee for labor secretary under President George W. Bush, for giving money to an illegal immigrant.

Treasury Secretary Timothy Geithner's nomination was delayed over failure to pay taxes, and Labor Secretary Hilda Solis' nomination was complicated by a tax lien on her husband.

The real reason for the NLRB recess appointments is that unions are unhappy with the Obama White House because the Employee Free Choice Act, which would have taken away the right to a secret ballot in elections for union representation and imposed mandatory arbitration in contracts between unions and newly unionized firms, failed to pass in a Democratic Congress in 2009-2010.

Obama has to do something, anything, to assuage the worries of the shrinking organized-labor sector. The percentage of private-sector American workers belonging to unions has declined steadily from its 35 percent level in World War II to below 7 percent in 2010.

The Justice Department opinion gives the president the excuse to game the system. If Seitz is correct, Obama can submit nominees at the last moment without documentation, complain that Congress has not confirmed them, and recess-appoint them when he decides that the Senate is not capable of fulfilling its advise-and-consent function.

That's no way to run a democracy.



Examiner Columnist Diana Furchtgott-Roth (dfr@manhattan-institute.org), former chief economist at the U.S. Department of Labor, is a senior fellow at the Manhattan Institute for Policy Research.

Read more at the Washington Examiner: Obama appointments no way to run a democracy | Diana Furchtgott-Roth | Columnists | Washington Examiner

Especially since we do not have a democracy , we "have" a Republic.