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THE NLRB RECESS APPOINTMENTS: IMPLICATIONS 

FOR AMERICA’S WORKERS AND EMPLOYERS 

HEARING 

BEFORE THE

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, FEBRUARY 7, 2012 

Serial No. 112–51 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Bob Goodlatte, Virginia 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

George Miller, California, 

Senior Democratic Member 

Dale E. Kildee, Michigan 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Mazie K. Hirono, Hawaii 

Jason Altmire, Pennsylvania 

Barrett Karr, Staff Director 

Jody Calemine, Minority Staff Director 
(III) 

C O N T E N T S 

Page 

Hearing held on February 7, 2012 ......................................................................... 1 

Statement of Members: 

Kline, Hon. John, Chairman, Committee on Education and the Workforce 1 

Prepared statement of ............................................................................... 3 

Miller, Hon. George, senior Democratic member, Committee on Education 

and the Workforce ......................................................................................... 4 

Prepared statement of ............................................................................... 5 

Statement of Witnesses: 

Cooper, Charles J., Partner, Cooper & Kirk, PLLC ...................................... 8 

Prepared statement of ............................................................................... 9 

Davis, Susan, partner, Cohen, Weiss and Simon, LLP ................................. 20 

Prepared statement of ............................................................................... 23 

Devaney, Dennis M., member, Devaney Jacob Wilson, PLLC ...................... 16 

Prepared statement of ............................................................................... 18 

Marculewicz, Stefan J., Esq., Littler Mendelson, P.C. .................................. 38 

Prepared statement of ............................................................................... 40 

Additional Submissions: 

Kucinich, Hon. Dennis J., a Representative in Congress from the State 

of Ohio: 

Article, ‘‘More Lockouts as Companies Battle Unions,’’ New York 

Times, January 22, 2012 ....................................................................... 59 

(1) 

THE NLRB RECESS APPOINTMENTS: 

IMPLICATIONS FOR AMERICA’S 

WORKERS AND EMPLOYERS 

Tuesday, February 7, 2012 

U.S. House of Representatives 

Committee on Education and the Workforce 

Washington, DC 

The committee met, pursuant to call, at 10:03 a.m., in room 

2175, Rayburn House Office Building, Hon. John Kline [chairman 

of the committee] presiding. 

Present: Representatives Kline, Petri, McKeon, Wilson, Foxx, 

Goodlatte, Roe, Walberg, DesJarlais, Hanna, Rokita, Gowdy, 

Barletta, Roby, Kelly, Miller, Kildee, Andrews, Scott, Woolsey, 

Hinojosa, McCarthy, Tierney, Kucinich, Holt, Davis, Grijalva, 

Bishop, and Altmire. 

Staff present: Katherine Bathgate, Press Assistant/New Media 

Coordinator; Casey Buboltz, Coalitions and Member Services Coordinator; Molly Conway, Professional Staff Member; Ed Gilroy, Director of Workforce Policy; Benjamin Hoog, Legislative Assistant; 

Marvin Kaplan, Workforce Policy Counsel; Barrett Karr, Staff Director; Ryan Kearney, Legislative Assistant; Brian Newell, Deputy 

Communications Director; Krisann Pearce, General Counsel; Molly 

McLaughlin Salmi, Deputy Director of Workforce Policy; Linda Stevens, Chief Clerk/Assistant to the General Counsel; Alissa 

Strawcutter, Deputy Clerk; Loren Sweatt, Senior Policy Advisor; 

Kate Ahlgren, Minority Investigative Counsel; Aaron Albright, Minority Communications Director for Labor; Tylease Alli, Minority 

Clerk; Kelly Broughan, Minority Staff Assistant; Jody Calemine, 

Minority Staff Director; John D’Elia, Minority Staff Assistant; 

Brian Levin, Minority New Media Press Assistant; Celine 

McNicholas, Minority Labor Counsel; Richard Miller, Minority Senior Labor Policy Advisor; and Megan O’Reilly, Minority General 

Counsel. 

Chairman KLINE. A quorum being present, the committee will 

come to order. 

Well, good morning, everybody. Welcome to our guests. We are 

fortunate to have a distinguished panel of witnesses today, and I 

want to thank all of you for your participation. 

In January, President Obama shocked many across the country 

when he made three so-called ‘‘recess appointments’’ to the National Labor Relations Board, despite the Senate not being in recess. This action touches upon a number of constitutional powers. 
2 

The first is the president’s authority to fill a vacancy through recess appointments, a power which no one questions. 

The other constitutional power involved allowed for Congress to, 

‘‘determine the rules of its proceedings.’’ and prevent one body of 

the legislative branch from adjourning more than 3 days without 

the consent of the other. Senate Democrats understood the value 

of these constitutional principles in 2007, when they first established the practice of convening pro forma sessions every 3 days in 

order to ‘‘prevent recess appointments,’’ and Democrat leader, 

Harry Reid, said at the time. 

The procedural maneuvering crafted by Senate Democrats 

worked, that is until President Obama decided he can determine 

what counts as legitimate business of the Congress. According to 

the rationale of the administration, pro forma sessions are nothing 

more than a gimmick that do not interrupt a recess of Congress. 

Therefore, the president can fill these position without the Senate’s 

consent. 

Decisions based on shaky legal ground can often lead to embarrassing contradictions. Days before the president decided to become 

the arbiter of congressional rules and proceedings, Congress approved a bill to prevent a tax hike on millions of Americans. Later 

that day, the president signed that very same bill into law. 

Either the payroll tax cut passed by the Senate during a pro 

forma session is the law of the land, and the recess appointments 

are invalid, or 170 million Americans are receiving tax relief unlawfully and the appointment should stand. No amount of legal 

manipulation can allow the president to have it both ways. 

We have witnessed this administration take extraordinary action 

that stretches the limits of the office, and undermines our all-important system of checks and balances. I realize that in many ways 

the appointment process is broken. However, no president should 

endorse an unconstitutional scheme in order to address a political 

problem. 

Not only has this action triggered a constitutional crisis, it has 

denied the public an opportunity to independently judge whether 

these individuals are qualified to serve. The Republican appointee 

was nominated a year ago, yet Democrats in control of the Senate 

refused to schedule a hearing on the nomination. Running roughshod over the appointment process, the president’s appointees 

hadn’t even completed the Senate’s routine background check at 

the time of their ‘‘recess appointments.’’ 

Thanks to the president’s action, three scarcely-known individuals are now empowered to dramatically transform our nation’s 

workforce. The highly controversial nature of the appointments 

guarantees the rules and decisions the new boardmembers adopt 

will be constitutionally suspect and legally challenged. 

Even the president’s own justice department, in what I would 

characterize as an understatement of the gravity of the situation, 

noted the issues surrounding these appointments ‘‘create some litigation risk.’’ Make no mistake. Every action taken by the board 

will be tainted, creating greater uncertainty for employers and additional costs for taxpayers. 

The president has steered the country into uncharted waters. 

The question remains, why? At a time when millions of Americans 
3 

are out of work, why threaten the certainty and confidence our 

economy needs to grow and prosper? Is it so unions can have greater access to an employee’s personal information and virtually unfettered access to an employer’s property, or so workers have just 10 

days to consider the consequences of joining a union before casting 

their ballot? 

Perhaps a decision was made to deny employers their legal right 

to speak to employees during an organizing campaign. Maybe it 

was to give the NLRB new opportunities to weaken workers’ right 

to a secret ballot. These are just some of the items on big labor’s 

agenda designed to strengthen its power by weakening protections 

for workers and employers. 

It is an agenda rejected by Congress, yet one that has made 

great progress in recent years, thanks to the activism of this labor 

board. The central issue before the committee today isn’t the process that led to these appointments, although that will be part of 

the discussion. 

Our primary concern is the fear and uncertainty this action has 

unleashed—the fear of the activist NLRB’s future actions and the 

uncertainty of whether its mandates and decisions can stand under 

constitutional scrutiny. I look forward to discussing these matters 

further with our witnesses. 

And I will now recognize my distinguished colleague, Mr. Miller, 

the senior Democratic member of the committee, for his opening remarks. 

[The statement of Chairman Kline follows:] 

Prepared Statement of Hon. John Kline, Chairman, 

Committee on Education and the Workforce 

Good morning and welcome to our guests. We are fortunate to have a distinguished panel of witnesses with us today; thank you for your participation. 

In January, President Obama shocked many across the country when he made 

three so-called recess appointments to the National Labor Relations Board 

(NLRB)—despite the Senate not being in recess. 

This unprecedented action touches upon a number of constitutional powers. The 

first is the president’s authority to fill vacancies through recess appointments, a 

power which no one questions. The other constitutional powers involved allow for 

Congress to ‘‘determine the Rules of its Proceedings’’ and prevent one body of the 

legislative branch from adjourning more than three days without the consent of the 

other. 

Senate Democrats understood the value of these constitutional principles in 2007 

when they first established the practice of convening pro forma sessions every three 

days in order to ‘‘prevent recess appointments,’’ as Democrat Leader Harry Reid 

said at the time. 

The procedural maneuvering crafted by Senate Democrats worked, that is until 

President Obama decided he can determine what counts as legitimate business of 

the Congress. According to the rationale of the administration, pro forma sessions 

are nothing more than a ‘‘gimmick’’ that do not interrupt a recess of Congress; 

therefore, the president can fill these positions without the Senate’s consent. 

Decisions based on shaky legal ground can often lead to embarrassing contradictions. Days before the president decided to become the arbiter of congressional rules 

and proceedings, Congress approved a bill to prevent a tax hike on millions of Americans. Later that day the president signed that very same bill into law. Either the 

payroll tax cut passed by the Senate during a pro forma session is the law of the 

land and the recess appointments are invalid, or 170 million Americans are receiving tax relief unlawfully and the appointments should stand. No amount of legal 

manipulation can allow the president to have it both ways. 

We’ve witnessed this president take extraordinary action that stretches the limits 

of his office and undermines our all-important system of checks and balances. I realize that in many ways the appointment process is broken. However, no president 

should endorse an unconstitutional scheme in order to address a political problem. 
4 

Not only has this action triggered a constitutional crisis; it has denied the public 

an opportunity to independently judge whether these individuals are qualified to 

serve. The Republican appointee was nominated a year ago, yet Democrats in control of 

the Senate refused to schedule a hearing on the nomination. Running roughshod 

over the appointment process, the president’s Democrat appointees hadn’t even completed the Senate’s routine background check at the time of their ‘‘recess’’ appointments. 

Thanks to the president’s action, three scarcely known individuals are now empowered to dramatically transform our nation’s workforce. The highly controversial 

nature of the appointments guarantees the rules and decisions the new board members adopt will be constitutionally suspect and legally challenged. Even the president’s own Justice Department, in what I would characterize as an understatement 

of the gravity of the situation, noted the issues surrounding these appointments 

‘‘create some litigation risk.’’ 

Make no mistake, every action taken by the board will be tainted, creating greater 

uncertainty for employers and additional costs for taxpayers. 

The president has steered the country into uncharted waters. The question remains: Why? At a time when millions of Americans are out of work, why threaten 

the certainty and confidence our economy needs to grow and prosper? 

Is it so unions can have even greater access to an employee’s personal information 

and virtually unfettered access to an employer’s property? 

Or so workers have just 10 days to consider the consequences of joining a union 

before casting their ballot? 

Perhaps the decision was made to deny employers their legal right to speak to 

employees during an organizing campaign? 

Maybe it was to give the NLRB new opportunities to weaken workers’ right to 

a secret ballot. 

These are just some of the items on Big Labor’s agenda designed to strengthen 

its power by weakening protections for workers and employers. It is an agenda rejected by Congress, yet one that has made great progress in recent years thanks 

to the activism of the Obama labor board. The president has provided his union allies a critical lifeline to wreak further havoc on America’s workplaces. 

The central issue before the committee today isn’t the process that led to these 

appointments, although that will be part of the discussion. Our primary concern is 

the fear and uncertainty this action has unleashed—the fear of the activist NLRB’s 

future actions and the uncertainty of whether its mandates and decisions can stand 

under constitutional scrutiny. 

I look forward to discussing these matters further with our witnesses. I will now 

recognize my distinguished colleague George Miller, the senior Democratic member 

of the committee, for his opening remarks. 

Mr. MILLER. Thank you, Mr. Chairman. And good morning, and 

welcome to our witnesses this morning. 

Last week, this committee held the rare hearing on creating job 

opportunities for the American people. The first panel consisted of 

two governors, one Democrat and one Republican. Despite party 

and regional differences, the governors delivered a positive message about cooperation and economic progress in their respective 

states. 

They both unequivocally rejected the path of divisive politics. 

When it comes to seeking solutions to stronger, faster economic recovery, they did not recommend inaction. Instead, they both made 

a compelling case that past efforts here in Washington like the Recovery Act and the auto rescue saved this country from an even 

deeper crisis. 

Michigan’s Republican governor specifically highlighted legislation authored by Congressman Frank to help provide capital to 

small businesses. Governor Snyder said that in Michigan one piece 

of legislation allowed the state to use $30 million in public funds 

to leverage nearly $86 million in private capital for small businesses. 
5 

Those loan enhancements were spread across these programs 

and, together, they supported the creation of nearly 1,000 new jobs. 

In addition, despite calls of some to let the domestic auto industry 

fail, both governors agreed the federal rescue of the American auto 

industry was essential. Governor Snyder noted that inaction would 

have brought down the entire industry. 

Because of the federal government’s role in the American automobile—because of the federal government’s role, the American 

auto industry is back on top of its game and creating thousands of 

jobs. The message to Congress is to work together, put aside divisive issues. 

Our nation’s future economic growth is dependent upon productive partnerships and shared responsibility between federal, state, 

and local governments and the private sector. And I couldn’t agree 

more with the governors. Last week’s hearing showed us what real 

opportunities there can be to work together to rebuild our economy 

and reignite the American dream. 

This committee should be exploring ways we can assist governors 

to assist their states’ infrastructure to modernize and repair our 

nation’s schools. Targeting resources to fix crumbling schools not 

only helps student learning, but saves struggling small contractors 

from bankruptcy and creates private sector construction jobs. 

We could be exploring ways we could work together to modernize 

our nation’s job training programs to find bipartisan solutions to 

ESEA reauthorization. We could be helping local governments save 

jobs for teachers, police and firefighters. We could be exploring 

ways to help small businesses with the two most important challenges—getting access to credit, and creating more customer demand. 

But that is not what this hearing is about. Today is just another 

legislative day to get dedicated to divisive issues. It is not about 

working together to find solutions to real problems. Today, the 

president’s efforts to keep a vital governmental agency fully functioning will surely be criticized, the rights of workers will be attacked, labor unions will be attacked. 

The agency’s efforts to enforce the law or modernize the law will 

be intact. By now, we all know the drill, and so does the very frustrated American public. So instead of working together to find solutions to real problems, we will proceed with the majority’s sixth 

hearing on the National Labor Relations Board. 

I yield back my time. 

[The statement of Mr. Miller follows:] 

Prepared Statement of Hon. George Miller, Senior Democratic Member, 

Committee on Education and the Workforce 

Good morning, Mr. Chairman. 

Last week, this committee held a rare hearing on creating job opportunities for 

the American people. 

The first panel consisted of two governors: One Democrat and one Republican. Despite party and regional differences, the governors delivered a positive message 

about cooperation and economic progress in their respective states. 

They both unequivocally rejected the path of divisive politics. When it comes to 

seeking solutions for a stronger, faster economic recovery, they did not recommend 

inaction. 

Instead, they both made a compelling case that past efforts here in Washington, 

like the Recovery Act and the auto rescue, saved this country from an even deeper 

crisis. 
6 

Michigan’s Republican governor specifically highlighted legislation authored by 

Congressman Frank that helps to provide capital to small businesses. 

Governor Snyder said that in Michigan, this one piece of legislation allowed the 

state to use $30 million in public funds to leverage nearly $86 million in private 

capital for small businesses. These loan enhancements were spread across three programs. All together, they supported the creation of nearly one thousand new jobs. 

In addition, despite calls from some to let the domestic auto industry fail, both 

governors agreed that the federal rescue of the American auto industry was essential. Governor Snyder noted that inaction would have brought down the entire industry. Because of the federal government’s role, the American auto industry is back 

on top of its game and creating thousands of jobs. 

Their message to Congress was ‘‘work together.’’ Put aside divisive issues. 

Our nation’s future economic growth is dependent on productive partnerships and 

shared responsibility between federal, state, and local governments and the private 

sector. 

I couldn’t agree more. 

Last week’s hearing showed us that there are real opportunities where we can 

work together to rebuild our economy and reignite the American Dream. 

This committee should be exploring ways we can assist governors to improve their 

states’ infrastructure and to modernize and repair our nation’s schools. Targeting 

resources to fix crumbling schools not only helps student learning, but also saves 

struggling small contractors from bankruptcy and creates private-sector construction 

jobs. 

We could be exploring ways we can work together to modernize our nation’s jobtraining programs or find a bipartisan solution to ESEA reauthorization. 

We could be helping local governments save the jobs of teachers, police, and firefighters. 

We could be exploring ways to help small businesses with their two most important challenges: getting access to credit and creating more consumer demand. 

But that’s not what this hearing is about. 

Today is just another legislative day dedicated to divisive issues. It’s not about 

working together to find solutions to real problems. 

Today, the President’s efforts to keep a vital government agency fully functional 

will surely be criticized. The rights of workers will be attacked. Labor unions will 

be attacked. An agency’s efforts to enforce the law or modernize the law will be attacked. 

By now, we all know the drill. And so does a very frustrated American public. 

So, instead of working together to find solutions to real problems, let’s proceed 

with the majority’s sixth hearing on the National Labor Relations Board. 

I yield back. 

Chairman KLINE. I thank the gentleman. 

Pursuant to committee rule 7-C, all committee members will be 

permitted to submit written statements to be included in the permanent hearing record. And so objection, the hearing record will 

remain open for 14 days to allow statements, questions for the 

record and other extraneous material referenced during the hearing to be submitted in the official hearing record. 

As we turn to introducing our distinguished panel of witnesses, 

I will now recognize Mrs. Roby of Alabama to introduce our first 

witness. Mrs. Roby? 

Mrs. ROBY. Thank you, Chairman Kline. It is my honor and 

privilege to introduce our first witness today, Mr. Charles Cooper, 

who is a fellow Alabamian with an impressive resume. Mr. Cooper 

is the founding member and current chairman of litigation for the 

firm Cooper & Kirk. 

He previously clerked for Judge Paul Roney at the U.S. Fifth Circuit, now the 11th Circuit of Appeals, and to the Supreme Court 

justice, William Rehnquist—chief justice. In 1985, President Ronald Reagan appointed Mr. Cooper to the position of assistant attorney general for the Office of Legal Counsel. 
7 

Shortly after, Mr. Cooper reentered private practice, concentrating on constitutional, commercial and civil rights litigation, and 

has been named one of the 10 best civil litigators in Washington 

by the National Law Journal. Mr. Cooper received both his B.S. 

and his J.D. from the University of Alabama. And on this committee, I would be remiss not to say ‘‘Roll, Tide, Roll.’’ 

Thank you for being with us today, Mr. Cooper, and my colleagues and I look forward to hearing your testimony. 

Chairman KLINE. I thank the gentlelady. I think we should consider, as a committee, that everybody just comes in wearing their 

school colors and we just get past this. 

It is my pleasure to resume introducing our panel of witnesses. 

Dennis M. Devaney is a member of Devaney Jacob Wilson, PLLC. 

Mr. Devaney was a Democrat National Labor Relations Board 

member from November 1988 until December 1994. He was also 

commissioner of the U.S. International Trade Commission. 

His labor and employment practice focuses on traditional labor 

law, including representation of clients with respect to matters 

arising under the National Labor Relations Act. He received his 

B.A. and M.A. from the University of Maryland and J.D. from 

Georgetown University Law Center. 

Susan Davis is a partner at Cohen, Weiss and Simon, LLP. Ms. 

Davis specializes in the representation of national and local unions 

in all aspects of collective bargaining, organizing and strategic 

planning. Ms. Davis also serves on the AFL-CIO lawyers advisory 

panel. Before entering the private sector, Ms. Davis clerked for the 

U.S. District Court in southern New York, under the Honorable 

Constance Baker Motley. She graduated with her B.A. at the University of California at Berkeley, and received her J.D. from Rutgers University. 

Stefan Marculewicz is a shareholder with Littler Mendelson, PC. 

He represents multinational and domestic corporations on issues 

involving international labor standards and labor management relations domestically. Prior to entering private practice he was a 

trial attorney for the National Labor Relations Board in its Baltimore and Fort Worth regional offices. Baltimore and Fort Worth. 

He received his B.A. from Lawrence University of Wisconsin, and 

J.D. from Catholic University America. 

Welcome, all of you. A distinguished panel, indeed. Before I recognize each of you to provide your testimony, let me again briefly 

explain our lighting system. You will each have 5 minutes to 

present your testimony. When you begin, the light in front of you 

will turn green. When 1 minute is left, the light will turn yellow. 

And when your time has expired the like will turn red. At that 

point, please try to wrap up your testimony. I won’t be grabbing 

the gavel and smashing it down during your closing sentence or 

something, but please try to wrap it up. Your entire testimony will 

be included in the record. All right, I think we are ready to go. 

We will start with Mr. Cooper. Sir, you are recognized for 5 minutes. 
8 

STATEMENT OF CHARLES J. COOPER, FOUNDER AND 

CHAIRMAN, COOPER & KIRK, PLLC 

Mr. COOPER. Thank you very much, Mr. Chairman, and good 

morning. And good morning, Mr. Miller, and members of the committee. I appreciate very much the opportunity to be before you 

today to testify about these important questions, and I am especially grateful to the congresswoman from the second district of 

Alabama for that warm introduction. 

I have been asked to testify concerning the constitutionality of 

President Obama’s January 4 recess appointments of three new 

members to the NLRB, and of Richard Cordray to be the first director of the Consumer Financial Protection Bureau. The issue that 

is at the heart of this committee’s constitutional inquiry is whether 

the Senate was continuously in recess from December 17 to January 23rd last. 

The administration, in an opinion by the Office of Legal Counsel, 

takes the position that it was, despite the fact that the Senate repeatedly gaveled itself into pro forma sessions and, in one of those 

sessions, actually passed legislation. In my view, the Senate was 

not in continuous recess, and the January 4 recess appointments 

therefore exceeded the president’s constitutional authority under 

the recess appointments clause. 

OLC’s legal argument rests entirely on the conclusion that the 

Senate is not in session at all during its pro forma sessions. For 

OLC, the Senate’s pro forma sessions are a constitutional nullity, 

at least for purposes of the recess appointments clause. I believe 

that this view is unsustainable for three principle reasons. 

The first, and threshold, reason that the Senate’s pro forma sessions interrupted its holiday adjournment is that the Senate says 

so. The Constitution’s rulemaking clause vests in each house of 

Congress the power to ‘‘determine the rules of its proceedings.’’ And 

rules governing how and when the Senate meets, like when this 

body meets, and adjourns are quintessential rules of proceedings. 

Because the rulemaking clause commits to the Senate judgments 

about the meaning of its own rules, the Senate’s determination 

that it was repeatedly in session between December 17 and January 23 should end the matter. Second, even if the rulemaking 

clause did not give the Senate unilateral authority to decide when, 

and how, to recess, there is a firmly established practice of using 

pro forma sessions to satisfy the requirements of other constitutional provisions. 

Since at least 1949, the Senate has repeatedly held pro forma 

sessions to comply with Article One, Section Five’s requirement 

that it not adjourn for more than 3 days without the consent of this 

body. Congress has also used pro forma sessions to satisfy the 20th 

Amendment’s requirement that it meet at noon on January 3rd to 

start a new session every year, unless a different time is specified 

by statute. 

And it is very difficult to see how the Senate can be in session 

for purposes of one constitutional provision while in recess for purposes of another. OLC rejects these argument and, instead, relies 

on what it says is the purpose of the recess appointments clause, 

in its words, ‘‘to provide a method of appointment when the Senate 

is unavailable to provide advice and consent.’’ 
9 

And throughout its opinion, OLC refers to this purpose about 

whether the Senate is available, and capable of providing its advice 

and consent responsibilities. And it bases this advice, again, on its 

view that the Senate was unavailable throughout the holiday adjournment because the days in which the Senate held a pro forma 

session were constitutionally indistinguishable from the days in 

which the Senate chamber was dark and empty. 

But this assertion collapses, I would submit, under the weight of 

a single inconvenient truth. While holding a pro forma session on 

December 23, the Senate passed a bill, a two-month extension of 

the payroll tax cut, with the president promptly signed into law. 

In passing the payroll tax cut extension, the Senate acted by unanimous consent, the very same procedure by which the Senate confirms most presidential appointees. 

If the Senate can pass legislation by unanimous consent during 

a pro forma session, then it can surely confirm presidents’ nominees in the same manner. The OLC opinion answers this point that 

even if, in fact, the Senate is able to act during its pro forma sessions, the president, in OLC’s words, ‘‘may properly rely on the 

public pronouncements of the Senate that it will not conduct business.’’ 

And there are several problems with this argument, and I will 

mention just two, in light of the time, Mr. Chairman. First, given 

the Senate actually passed a law during its pro forma session, on 

December 23rd prior to the January 4 recess appointments, the 

president plainly was not entitled to rely on the Senate’s repudiated public pronouncement that no business would be conducted at 

such sessions. 

Secondly, President Obama, in fact, has not relied on the Senate’s no-business pronouncement. It was he who urged the Senate 

to pass the two-month extension of the payroll tax cut during the 

holiday adjournment, and he who then promptly signed the bill 

into with. The president surely isn’t entitled both to rely on the 

Senate’s no-business public pronouncement and to ignore it as it 

pleases him. 

In short, Mr. Chairman and members of the committee, the 

president’s January 4 recess appointments really had nothing to do 

with whether the Senate was available to act, and everything to do 

with the Senate’s unwillingness to confirm the president’s nominees. And as with every branch of our government, there is hydraulic pressure within the executive branch to exceed the outer 

limits of its own power. 

But regardless of whether the president has sought to exceed his 

power in this instance for good or ill, it is Congress’ constitutional 

responsibility to resist it. 

Thank you again, Mr. Chairman, for inviting me to be here this 

morning. 

[The statement of Mr. Cooper follows:] 

Prepared Statement of Charles J. Cooper, Partner, Cooper & Kirk, PLLC 

Good morning Mr. Chairman and Members of the Committee. My name is Charles 

J. Cooper, and I am a partner in the Washington, D.C., law firm of Cooper & Kirk, 

PLLC. I appreciate the Committee’s invitation to present my views on the constitutionality of the President’s January 4 recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau. For reasons I will ex-
10 

plain below, I believe that the President exceeded his constitutional authority by 

making these appointments during a three-day adjournment between pro forma 

Senate sessions. But first I would like to outline the professional experience that 

informs my thinking on this important subject. 

I have spent the bulk of my career, both as a government lawyer and in private 

practice, litigating or otherwise studying a broad range of constitutional issues. 

From 1985 to 1988, I served as the Assistant Attorney General of the Office of Legal 

Counsel of the Department of Justice, where I advised President Reagan and Attorney General Meese on numerous separation of powers and other constitutional 

issues. Perhaps most notable for present purposes, in early 1988 the President 

asked the Justice Department for its opinion as to whether the Constitution vests 

the President with an inherent power to exercise a line-item veto. After exhaustive 

study, the Office of Legal Counsel (‘‘OLC’’) concluded that the proposition was not 

well-founded and that the President could not conscientiously attempt to exercise 

such a power. OLC’s opinion is publicly available at 12 Op. O.L.C. 128 (1988). 

Since leaving government service in 1988, I have been involved in a number of 

significant separation of powers cases in both the Supreme Court and the lower federal courts. E.g., Raines v. Byrd, 521 U.S. 811 (1997) (holding that individual congressmen lack standing to challenge Line Item Veto Act); Clinton v. New York, 524 

U.S. 417 (1998) (holding that Line Item Veto Act violates Presentment Clause); FEC 

v. NRA, 513 U.S. 88 (1994) (dismissing case as improvidently granted because FEC 

lacked statutory authority to file cert petition); FEC v. NRA, 6 F.3d 821 (D.C. Cir. 

1993) (holding that congressional appointment of ex officio FEC commissioners violates the Appointments Clause); Olympic Fed. Sav. & Loan Ass’n v. Director, Office 

of Thrift Supervision, 732 F. Supp. 1183 (D.D.C. 1990) (enjoining operations of the 

Office of Thrift Supervision because Directors’ appointments were not authorized by 

Appointments Clause or Vacancies Act). Together, these experiences have made me 

a student of the system of checks and balances implicated by the recess appointments that are the subject of this hearing. 

I

Between December 17, 2011, and January 23, 2012, the Senate held a series of 

so-called ‘‘pro forma’’ sessions designed to break the holiday period into three-day 

adjournments in order to comply with its constitutional obligation not to adjourn for 

more than three days during a congressional session without the consent of the 

House of Representatives. U.S. CONST. Art. I, § 5, cl. 4. The order that scheduled 

these pro forma sessions was entered by unanimous consent and provided that there 

was to be ‘‘no business conducted.’’ 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011). 

At one of its pro forma sessions, however, the Senate passed by unanimous consent 

a two-month extension of the payroll tax cut, as requested by President Obama. Id. 

at S8789 (daily ed. Dec. 23, 2011). And on January 3, 2012, the Senate met in pro 

forma session to comply with the Twentieth Amendment’s requirement that Congress meet on that date ‘‘in every year * * * unless they shall by law appoint a different date.’’ The following day, on January 4, the President made four recess appointments, filling three vacant seats on the National Labor Relations Board 

(‘‘NLRB’’) and appointing Richard Cordray to be the first Director of the Consumer 

Financial Protection Bureau (‘‘CFPB’’). The NLRB recess appointments are of great 

significance because without them the Board would have only two members, and 

thus would lack the quorum needed to take action. See New Process Steel, L.P. v. 

NLRB, 130 S. Ct. 2635 (2010). Two days after announcing the appointments, on 

January 6, the Administration released an OLC opinion that explains the legal rationale for the President’s actions. Before addressing the merits of OLC’s analysis, 

some background on the constitutional provisions at issue may be useful. 

II

The Appointments Clause gives the President power ‘‘by and with the Advice and 

Consent of the Senate’’ to ‘‘appoint * * * Officers of the United States.’’ U.S. 

CONST. Art. II, § 2, cl. 2. This ‘‘general mode of appointing officers of the United 

States’’ is ‘‘confined to the President and Senate jointly,’’ THE FEDERALIST NO. 

67 (Alexander Hamilton), and it has always been the method by which the vast majority of officers receive their commissions. As a ‘‘supplement’’ to this usual procedure, id., the Recess Appointments Clause authorizes the President to ‘‘fill up all 

Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session,’’ U.S. CONST. Art. II, § 

2, cl. 3. The Framers gave the President this ‘‘auxiliary’’ power because ‘‘it would 

have been improper to oblige [the Senate] to be continually in session for the appointment of officers,’’ and yet ‘‘vacancies might happen in their recess, which it 
11 

might be necessary for the public service to fill without delay.’’ THE FEDERALIST 

NO. 67. 

Because the Recess Appointments Clause permits the President, under the specified circumstances, to bypass the Senate and make appointments unilaterally, it has 

been a rich source of conflict between Presidents and Congresses since the early 

days of the Republic. The earliest disputes concerned the questions whether a recently created office, which has never before been occupied, creates a ‘‘vacancy’’ and 

whether a vacancy that occurs when the Senate is in session ‘‘happen[s] during the 

recess of the Senate.’’ See, e.g., Letter from Alexander Hamilton to James McHenry 

(May 3, 1799), in 23 THE PAPERS OF ALEXANDER HAMILTON 94 (Harold C. 

Syrett ed., 1976); Edmund Randolph, Opinion on Recess Appointments (July 7, 

1792), in 24 THE PAPERS OF THOMAS JEFFERSON, at 165-67 (John Catanzariti 

et al. ed., 1990); 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON 350- 

53 (R. Worthington ed., 1884); 26 Annals of Cong. 652-58, 694-722, 742-60 (1814); 

DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE 

JEFFERSONIANS, 1801-1829, at 188-89 (2001). Although there is substantial textual and historical support for a negative answer to both of these questions, see Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 

UCLA L. REV. 1487 (2005); Stephens v. Evans, 387 F.3d 1220, 1228 (11th Cir. 

2004) (Barkett, J., dissenting), in an 1823 opinion Attorney General William Wirt 

embraced the broader view that the Executive Branch has taken since. 

Lengthy adjournments during sessions of Congress were rare in the early nineteenth century, but longer so-called ‘‘intrasession recesses’’ became more common in 

recent decades. With a single exception, see Rappaport, supra at 1572, the uniform 

practice of Presidents through World War I was to refrain from making recess appointments during intrasession adjournments, and in 1901 Attorney General Knox 

concluded that the President lacks constitutional authority to do so, 23 Op. Att’y 

Gen. 599 (1901). But in 1921, Attorney General Daugherty advised President Coolidge that he could break with prior precedent and constitutionally make recess appointments any time the Senate is unable to ‘‘receive communications from the 

President or participate as a body in making appointments.’’ 33 Op. Att’y Gen. 20, 

24 (1921). Although the Senate has intermittently objected to intrasession recess appointments in the years since, see, e.g., Brief for Senator Edward M. Kennedy as 

Amicus Curiae, Stephens v. Evans, 387 F.3d 1220 (11th Cir. 2004) (No. 02-16424), 

Attorney General Daugherty’s opinion is the basis for what has become the Executive Branch’s settled view, see, e.g., Intrasession Recess Appointments, 13 Op. 

O.L.C. 271, 272-73 (1989); Recess Appointments—Compensation (5 U.S.C. § 5503), 

3 Op. O.L.C. 314, 315-16 (1979); 41 Op. Att’y Gen. 463, 468 (1960). Although the 

Supreme Court has never addressed the meaning of the Recess Appointments 

Clause, a number of the Courts of Appeals have acquiesced, in whole or in part, in 

the Executive’s longstanding view of this Clause. See, e.g., Stephens v. Evans, 387 

F.3d 1220 (11th Cir. 2004) (en banc) (upholding intrasession recess appointment to 

fill vacancy that occurred while the Senate was in session); United States v. 

Woodley, 751 F.2d 1008 (9th Cir. 1985 (en banc) (upholding recess appointment to 

fill vacancy that did not arise while the Senate was in recess); United States v. 

Allocco, 305 F.2d 704 (2d Cir. 1962) (same). 

Against this backdrop of interbranch disputes and shifting historical practices, the 

controversy that brings this Committee into session today is whether the Senate 

may use pro forma sessions to prevent the President from making recess appointments. More concretely, the question is whether the Senate was continuously in recess from December 17 to January 23 despite repeatedly gaveling itself into session 

and, in one instance, actually passing a bill. In my view, the Senate was not in ‘‘Recess’’ during its pro forma sessions, and the recess appointments at issue exceeded 

the President’s constitutional authority. 

III

Before discussing the Administration’s legal rationale for the recent appointments, 

I will first frame the issue by noting two things that OLC’s opinion does not say. 

First, the opinion does not suggest that the President can make recess appointments 

during a Senate adjournment of only three days—the length of the adjournment between the pro forma sessions at issue here. Instead, OLC’s legal argument rests entirely on its conclusion that the Senate is not actually in session during its pro 

forma sessions, and so was in continuous recess between December 17 and January 

23. For OLC, then, the Senate’s pro forma sessions are a constitutional nullity, at 

least for purposes of the Recess Appointments Clause. 

The Administration’s reluctance to argue that the President can make recess appointments during a three-day Senate adjournment is hardly surprising given the 
12 

1See also, e.g., 2012 OLC Op. at 14 (‘‘[B]rief pro forma sessions of this sort, at which the Senate is not capable of acting on nominations, may properly be viewed as insufficient to terminate 

an ongoing recess for purposes of the Clause.’’); id. at 15 (‘‘[W]e believe the critical inquiry is 

the ‘‘practical’ one identified above—to wit, whether the Senate is available to perform its advise 

and consent function.’’). 

overwhelming weight of authority that suggests otherwise. Even Attorney General 

Daugherty, whose 1921 opinion extended the President’s recess appointment power 

to intrasession adjournments, acknowledged that ‘‘an adjournment of 5 or even 10 

days [could not] be said to constitute the recess intended by the Constitution.’’ 33 

Op. Att’y Gen. at 25. Since then, lawyers serving in numerous Administrations have 

advised Presidents to wait for a recess of some significant duration before making 

recess appointments. See, e.g., Memorandum for Alberto R. Gonzales, Counsel to the 

President, from Jack L. Goldsmith III, Assistant Attorney General, Office of Legal 

Counsel, Re: Recess Appointments in the Current Recess of the Senate at 3 (Feb. 

20, 2004); The Pocket Veto: Historical Practice and Judicial Precedent, 6 Op. O.L.C. 

134, 149 (1982) (observing that OLC ‘‘has generally advised that the President not 

make recess appointments, if possible, when the break in continuity of the Senate 

is very brief’’); Recess Appointments—Compensation (5 U.S.C. § 5503), 3 Op. O.L.C. 

314, 315-16 (1979) (describing informal advice against making recess appointments 

during a six-day intrasession recess in 1970). Indeed, the Department of Justice recently reached the same conclusion. See Letter to William K. Suter, Clerk, Supreme 

Court of the United States, from Elena Kagan, Solicitor General, Office of the Solicitor General at 3 (April 26, 2010), New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 

(2010) (No. 08-1457). And recent Presidents have accepted their lawyers’ advice: 

from the start of the Reagan Administration until last month, the shortest recess 

during which a President made a recess appointment was 10 days. See Henry B. 

Hogue, Congressional Research Service, Recess Appointments: Frequently Asked 

Questions 10 (Jan. 9, 2012). 

If, as I believe, the Administration is wrong when it claims that pro forma Senate 

sessions are a legal nullity, then the President’s appointments are contrary to both 

the weight of legal authority and historical practice. Indeed, as far as I am aware, 

the present case would stand alone as the shortest intrasession recess during which 

any President has ever made a recess appointment. Presidents have made recess appointments during intersession recesses of less than three days on only two occasions, Hogue, supra, at 10, and in at least one of these cases the Senate vigorously 

protested, see S. Rep. No. 4389, 58th Cong., 3d Sess., reprinted in 39 Cong. Rec. 

3823, 3824 (1905). 

Second, the OLC opinion does not suggest that the Senate cannot constitutionally 

block recess appointments by remaining in session. To the contrary, OLC expressly 

acknowledges that ‘‘[t]he Senate could remove the basis for the President’s exercise 

of his recess appointment authority by remaining continuously in session.’’ 2012 

OLC Op. at 1. The only question, then, is whether the Senate’s acknowledged power 

to thwart the President’s recess appointment power was properly exercised through 

its use of pro forma sessions. 

IV

A threshold reason to conclude that the Senate’s pro forma sessions interrupted 

its holiday adjournnment is that the Senate says so. The Constitution vests in each 

House of Congress the power to ‘‘determine the Rules of its Proceedings,’’ U.S. 

CONST. Article I, § 5, cl. 4, and rules governing how and when the Senate meets 

and adjourns are quintessential rules of proceedings. Because the Rulemaking 

Clause commits to the Senate judgments about the meaning of its own rules, the 

Senate’s determination that it was repeatedly in session between December 17 and 

January 23 should end the matter. 

The Framers understood that the Houses of Congress must have authority to 

make their own rules to function as a coequal branch of government. See Thomas 

Jefferson, Constitutionality of Residence Bill of 1790 (July 15, 1790), reprinted in 

2 THE FOUNDERS’ CONSTITUTION, Document 14 (‘‘Each house of Congress possesses this natural right of governing itself, and consequently of fixing its own times 

and places of meeting, so far as it has not been abridged by * * * the Constitution.’’). As Joseph Story explained in his authoritative constitutional treatise, ‘‘[t]he 

humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority.’’ 1 JOSEPH STORY, 

COMMENTARIES ON THE CONSTITUTION § 835 (1833). 

When Congress makes rules that govern its proceedings, the President should, 

like the courts, defer to the legislative branch. See Mester Mfg. v. INS, 879 F.2d 

at 571 (9th Cir. 1989) (‘‘The Constitution * * * requires extreme deference to ac-
13 

company any judicial inquiry into the internal governance of Congress.’’). Courts 

honor Congress’ rules under the enrolled bill rule by treating the attestations of the 

two houses as ‘‘conclusive evidence that a bill was passed by Congress,’’ even in the 

face of evidence that demonstrates otherwise. Pub. Citizen v. District of Columbia, 

486 F.3d 1342 (D.C. Cir. 2007); see also One SimpleLoan v. U.S. Secretary of Educ., 

496 F.3d 197 (2d Cir. 2007). This doctrine reflects ‘‘the respect due to a coordinate 

branch of government,’’ Marshall Field & Co. v. Clark, 143 U.S. 649, 673 (1892), and 

underscores the very limited inquiry courts make where the Congress’ rules of proceedings are at issue. For similar reasons, the D.C. Circuit has held that the meaning of ambiguous congressional rules is nonjusticiable; were it otherwise, ‘‘the court 

would effectively be making the Rules—a power that the Rulemaking Clause reserves to each House alone.’’ United States v. Rostenkowski, 59 F.3d 1291, 1306- 

07 (D.C. Cir. 1995). And although the OLC opinion is surely correct when it says 

that Congress ‘‘ ‘May not by its rules ignore constitutional restraints or violate fundamental rights,’ ’’ 2012 OLC Op. at 20 (quoting United States v. Ballin, 144 U.S. 

1, 5 (1892)), the Supreme Court has made clear that ‘‘within these limitations all 

matters of method are open to the [Senate’s] determination,’’ Ballin, 144 U.S. at 5. 

The present case underscores the Framers’ wisdom in giving each House of Congress exclusive authority to make its own rules. Here the President purports to tell 

the Senate what it must do to bring itself into session and retroactively declares 

a series of Senate sessions to be a constitutional nullity. The Rulemaking Clause 

does not permit such executive interference in the Senate’s internal procedures any 

more than it would permit similar interference by the courts. Cf. Nixon v. United 

States, 506 U.S. 224 (1993). To hold otherwise would threaten Congress’s ability to 

function as an independent branch of government, undermining the checks and balances that the Framers ‘‘built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the 

expense of the other.’’ Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam). 

It is no answer to say that the Senate could use its rulemaking authority to prevent the President from making recess appointments ‘‘by declaring itself in session 

when, in practice, it is not available to provide advice and consent.’’ 2012 OLC Op. 

at 20. As discussed in detail below, the Senate has not done this, for it is available 

to provide advice and consent during its pro forma sessions. In any event, the Constitution empowers the Senate to block recess appointments by refusing to recess, 

and the validity of the President’s January 4 appointments depends on his judgment 

that the Senate unsuccessfully attempted to exercise this power. As Alexander Hamilton explained in Federalist 76, the Framers denied the President ‘‘the absolute 

power of appointment’’ because they believed the Senate would ‘‘tend greatly to prevent the appointment of unfit characters’’ and would serve as ‘‘an efficacious source 

of stability in the administration’’ of government. The prospect of an intransigent 

Senate that refuses to confirm the President’s nominees is an unavoidable corollary 

of the Framers’ decision to ‘‘divid[e] the power to appoint the principal federal officers * * * between the Executive and Legislative branches.’’ Freytag v. Commissioner, 501 U.S. 868, 869 (1991). 

V

But even if the Rulemaking Clause did not give the Senate unilateral authority 

to decide when and how to recess, the better view would still be that the President 

cannot make recess appointments when the Senate is in pro forma session. Although the use of pro forma sessions to block recess appointments is a relatively 

new practice—first threatened during the Reagan Administration and first used 

against George W. Bush—there is a firmly established practice of using pro forma 

sessions to satisfy the requirements of other constitutional provisions. 

Since at least 1949, the Senate has repeatedly held pro forma sessions to comply 

with Article I, Section 5’s requirement that it not adjourn for more than three days 

without the House’s permission. See, e.g., 95 Cong. Rec.12,586 (Aug. 31, 1949); 95 

Cong. Rec. 12,600 (Sept. 3, 1949); 96 Cong. Rec. 7769 (May 26, 1950); 96 Cong. Rec. 

7821 (May 29,1950); 96 Cong. Rec. 16,980 (Dec. 22,1950); 96 Cong. Rec. 17,020 (Dec. 

26, 1950); 96 Cong. Rec. 17,022 (Dec. 29, 1950); 97 Cong. Rec. 2835 (Mar. 22, 1951); 

97 Cong. Rec. 2898 (Mar. 26, 1951); 97 Cong. Rec. 10,956 (Aug. 31, 1951); 97 Cong. 

Rec. 10,956 (Sept. 4, 1951); 98 Cong. Rec. 3998-99 (Apr. 14, 1952); 101 Cong. Rec. 

4293 (Apr 4, 1955); 103 Cong. Rec. 10,913 (July 5, 1957). Congress has also used 

pro forma sessions to satisfy the Twentieth Amendment’s requirement that it meet 

at noon on January 3 to start a new session unless a different time is specified by 

statute. See H.R. Con. Res. 232, 96th Cong., 93 Stat 1438 (1979) (pro forma session 

to be held on January 3, 1980); H.R. Con. Res. 260, 102d Cong., 105 Stat. 2446 

(1991) (pro forma session to be held on January 3, 1992); 151 Cong. Rec. S14,421 
14 

2Op. Att’y Gen. 631 (1823). Attorney General Wirt’s opinion reads the phrase ‘‘may happen 

during the recess of the Senate’’ to mean ‘‘may happen to exist during the recess of the Senate,’’ 

and so concludes that the President may fill any seat that is open during a recess regardless 

of when it became open or whether it has been previously occupied. Id. at 631-32. 

(daily ed. Dec. 21, 2005) (pro forma session to be held on January 3, 2006); 153 

Cong. Rec. S16,069 (daily ed. Dec. 19, 2007) (pro forma session to be held on January 3, 2008); 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011) (pro forma session to 

be held on January 3, 2012). Pro forma sessions have long been widely accepted as 

a permissible method of fulfilling these constitutional mandates, and it is difficult 

to see how the Senate could be in session for purposes of one constitutional provision while in recess for purposes of another. 

VI

Rejecting these arguments, OLC relies instead on what it says is the purpose of 

the Recess Appointments Clause: ‘‘to provide a method of appointment when the 

Senate [is] unavailable to provide advice and consent.’’ 2012 OLC Op. at 15. 

Throughout its lengthy opinion, OLC repeatedly emphasizes the Executive Branch’s 

‘‘traditional view that the Recess Appointments Clause is to be given a practical construction focusing on the Senate’s ability to provide advice and consent to nominations * * * .’’ Id. at 4. In concluding that a pro forma session of the Senate is indistinguishable from a recess of the Senate, OLC argues that ‘‘the touchstone is [the 

pro forma sessions’] ‘‘practical effect, viz., whether or not the Senate is capable of 

exercising its constitutional function of advising and consenting to executive nominations.’ ’’ Id. at 12 (quoting Recess Appointments, 41 Op. Att’y Gen. at 467).2

OLC is certainly correct that the Recess Appointments Clause was intended to 

provide ‘‘an auxiliary method of appointment,’’ as Hamilton put in Federalist No. 

67, for filling ‘‘vacancies that may happen during the recess of the Senate,’’ when 

the Senate is unavailable to perform its advice and consent function. But even accepting at face value OLC’s ‘‘practical construction’’ of the Recess Appointments 

Clause, the recess appointments made by the President on January 4 cannot reasonably be justified on the ground that the Senate was unavailable or otherwise unable 

to perform its advice and consent function. Rather, the Senate has simply been unwilling to provide its advice and consent to the President’s nominees. 

First, not only has the Senate been ‘‘available’’ in fact to consider these nominations, it has actually been considering some of them for many months. The President recess appointed Terence Flynn to a seat on the NLRB that had been vacant 

since August 27, 2010, when Peter Schaumber’s statutory term expired. National 

Labor Relations Board, Members of the NLRB since 1935, https://www.nlrb.gov/ 

members-nlrb-1935 (last visited Feb. 5, 2012). This vacancy thus occurred by operation of law, not as a result of some unexpected event such as resignation or death. 

Yet the President waited over four months, until January 2011, to nominate Mr. 

Flynn to fill the seat. Far from being unavailable or otherwise unable to provide its 

advice and consent to Mr. Flynn’s nomination, the Senate has simply been unwilling 

to do so, and the nomination has been stalled for over a year. In the case of Richard 

Griffin, the President waited until December 15, 2011—two days before the Senate’s 

adjournment for the holiday—to nominate him to a seat that became vacant at the 

expiration of Wilma Liebman’s statutory term months earlier, on August 27, 2011. 

Id. Again, this vacancy on the NLRB occurred by operation of law; it took no one 

by surprise. It is untenable for OLC to claim that the President acted to fill these 

vacancies because the Senate was not ‘‘capable of exercising its constitutional function of advising and consenting to executive nominations.’’ Id. at 12. 

Indeed, in publicly announcing his recess appointment of Mr. Cordray to the 

CFPB, President Obama abandoned any pretense that he was acting because the 

Senate was unavailable to consider the nomination. To the contrary, the President 

declared that he was making the recess appointment despite the fact that the Senate had been considering the nomination for over six months. This is what he said: 

‘‘Now, I nominated Richard for this job last summer * * * For almost half a year, 

Republicans in the Senate have blocked Richard’s confirmation. They refused to 

even give Richard an up or down vote * * * .’’ President Barak Obama, Remarks 

by the President on the Economy, available at http://www.whitehouse.gov/thepress-office/2012/01/04/remarks-president-economy (Jan. 4, 2012). The President 

was not complaining that the Senate was unavailable or unable to confirm Mr. 

Cordray. He was complaining that the Senate refused to confirm Mr. Cordray. And, 

as he candidly proclaimed: ‘‘I refuse to take no for an answer.’’ Id. 

Thus, the President himself has openly acknowledged that his purpose in recess 

appointing Mr. Cordray to the CFPB had nothing to do with the only purpose of-
15 

fered by his lawyers at OLC as providing a constitutional justification for the exercise of his power to do so. The President’s January 4 recess appointments were driven not by any concern that the Senate was unavailable to perform its constitutional 

role in the appointment of government officers, but rather by the President’s determination, openly avowed, to circumvent the Senate’s role. 

VII

For OLC, however, the Senate’s availability to perform its advice and consent 

function is not determined by whether the Senate is in fact available to consider 

a nomination, or even by whether it has in fact been considering a nomination for 

many months. Rather, OLC focuses solely on whether the Senate’s availability to 

consider a nomination is interrupted by a recess of sufficient duration to justify exercise of the President’s recess appointment power. And, as previously noted, it has 

opined that the Senate was unavailable throughout its holiday adjournment—from 

December 17 to January 23—because the days in which the Senate held a pro forma 

session were constitutionally indistinguishable from the days in which the Senate 

chamber was dark and empty. 

But this assertion collapses under the weight of a single inconvenient truth: while 

holding a pro forma session on December 23, the Senate passed a bill—a two month 

extension of the payroll tax cut—which the President promptly signed into law. 157 

Cong. Rec. S8789 (daily ed. Dec. 23, 2011). This was not the first time that the Senate had passed legislation during a pro forma session. See id. at S5297 (daily ed. 

Aug. 5, 2011) (passing Airport and Airway Extension Act during pro forma session). 

In passing the payroll tax cut extension, the Senate acted by unanimous consent, 

the same procedure by which the Senate confirms most presidential nominees. MICHAEL L. KOEMPEL & JUDY SCHNEIDER, CONGRESSIONAL DESKBOOK § 

10.80 (5th ed. 2007); see, e.g., 157 Cong. Rec. S7874-75 (daily ed. Nov. 18, 2011); 

157 Cong. Rec. S4303 (daily ed. June 30, 2011); 156 Cong. Rec. S587 (daily ed. Feb. 

11, 2010). In fact, the Senate confirmed numerous nominees by unanimous consent 

the very day it agreed to hold the pro forma sessions at issue here. 157 Cong. Rec. 

S8769-70 (daily ed. Dec. 17, 2011). If the Senate can pass legislation by unanimous 

consent during a pro forma session, then it can surely confirm the President’s nominees in the same manner, especially if there is an immediate and indisputable need 

for it to do so. Further, Senate committees often consider presidential appointees 

when the Senate is in intrasession recesses. During the intrasession recess from 

January 7 to January 20, 1993, for example, Senate committees ‘‘considered nearly 

every one of President-elect Clinton’s cabinet nominations.’’ Michael A. Carrier, 

Note, When Is the Senate in Recess for Purposes of the Recess Appointments 

Clause?, 92 MICH. L. REV. 2204, 2242 (citing 139 Cong. Rec. D46-48 (daily ed. Jan. 

20, 1993)). Had some national emergency over the holiday break made the filling 

of a vacant office imperative, there is no doubt that the Senate would have been 

able to confirm a nominee at one of its pro forma sessions. Nor is there any doubt 

that the President could have called the Senate into session for the purpose of performing its advice and consent function, if he determined that the national interest 

required him to do so. U.S. CONST., ART. II, § 3, cl. 2. 

The OLC opinion answers that, even if in fact the Senate is able to act during 

its pro forma sessions, the President ‘‘may properly rely on the public pronouncements of the Senate that it will not conduct business.’’ 2012 OLC Op. at 21. There 

are several problems with this argument. 

First, the Senate’s scheduling order directing that no business be conducted during pro forma sessions was entered by unanimous consent, and there can be no 

doubt that the Senate was perfectly free to overrule it, and to conduct business, by 

unanimous consent. Surely, under a ‘‘practical construction’’ of the Recess Appointments Clause ‘‘focusing on the Senate’s ability to provide advice and consent to 

nominations,’’ 2012 OLC Op. at 4, the indisputable practical reality that the Senate 

is able to provide advice and consent to nominations during a pro forma session 

trumps a non-binding public pronouncement to the contrary. Second, given that the 

Senate passed a law during its pro forma session on December 23, prior to the January 4 recess appointments, the President plainly was not entitled to rely on the Senate’s repudiated public pronouncement that no business would be conducted at such 

sessions. If a Senate recess is defined as any period during which the Senate is not 

available to conduct business, then surely the Senate cannot be in recess when it 

passes legislation. Finally, President Obama in fact has not relied on the Senate’s 

no-business pronouncement. It was he who urged the Senate to pass the two-month 

extension of the payroll tax cut during the holiday adjournment, and who promptly 

signed the bill into law notwithstanding that it was passed by the Senate in plain 

violation of the order scheduling the December 23 pro forma session. The President 
16 

surely is not entitled both to rely on the Senate’s public pronouncement that it will 

not conduct business and to ignore it, as he pleases. 

Rather than furthering the purpose of the President’s recess appointment power, 

the OLC opinion would allow that power to swallow the Senate’s authority to withhold its consent when it believes a nominee should not be confirmed. In this way, 

the Administration’s legal position is a vivid illustration of what Justice Cardozo 

called ‘‘the tendency of a principle to expand itself to the limit of its logic.’’ BENJAMIN N. CARDOZO, NATURE OF THE JUDICIAL PROCESS 51 (1921). The 

Framers intended the President’s recess appointment power to serve as an ‘‘auxiliary method’’ that would ‘‘supplement’’ the usual requirement that the President 

and the Senate act ‘‘jointly’’ in making appointments. THE FEDERALIST NO. 67 

(Alexander Hamilton). Yet under the Administration’s approach, a President could 

circumvent the Senate’s opposition to a nominee by making seriatim recess appointments to the same office. That is precisely what the President has done in the case 

of his recess appointment to the NLRB of Sharon Block, where he replaced one recess appointee with another. 

The President’s January 4 recess appointments had nothing to do with whether 

the Senate was available to act and everything to do with the Senate’s unwillingness to confirm the President’s nominees. As with every branch of our government, 

there is a ‘‘hydraulic pressure’’ within the Executive ‘‘to exceed the outer limits of 

its power.’’ INS v. Chadha, 462 U.S. 919, 951 (1983). Regardless of whether the 

President has sought to exceed his power for good or ill, it is Congress’ constitutional responsibility to resist him. 

Chairman KLINE. Thank you, sir. 

Mr. Devaney, you are recognized for 5 minutes. 

STATEMENT OF DENNIS M. DEVANEY, MEMBER, 

DEVANEY JACOB WILSON, PLLC 

Mr. DEVANEY. Thank you, Mr. Chairman, Ranking Member Miller, members of the committee. It is a privilege for me to be here 

this morning to comment on the public policy implications for the 

NLRB of President Obama’s January 4th so-called ‘‘recess appointment’’ of three members. 

As you all know, those three members actually are a quorum of 

the board since the 1947 Taft-Hartley Act amendments. And I 

think it is particularly significant in the wake of the Supreme 

Court’s decision, in New Process Steel, that the majority of the 

board is now purportedly appointed via this recess appointment 

mechanism. 

As I said in the Washington Times interview that I gave, my 

problem with it is I think it is going to put a cloud over every action that this board takes. And the object lesson and relevant 

precedent that underscores this unfortunate public policy consequence for the board, employees, unions and employers is best illustrated by what happened to the board in December of 2007. 

As many of you will remember, finding itself with only four members and expecting two more vacancies when the recess appointments of two members expired at the adjournment of the first session of the 110 Congress, the four boardmembers purportedly delegated all of the board’s powers to the remaining two members. 

And they did this at a time, and in the face of, the clear language 

in the statute since 1947, which says that three members of the 

board shall at all times constitute quorum of the board. On behalf 

of one of my clients, I appealed an adverse two-member decision to 

the U.S. Court of Appeals for the District of Columbia Circuit and 

then, on the client’s behalf, participated as amicus curiae on the 

winning side in the U.S. Supreme Court New Process Steel case. 
17 

And I note for the record that Justice Stevens, in one of his last 

opinions, writing for the majority, said, ‘‘If Congress wishes to 

allow the board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the 

board’s full power be delegated to more fewer than three members, 

and to provide for a board quorum of three, must be given practical 

effect.’’ 

Section 3-B, as it currently exists, does not authorize the board 

to create a tail that would not only wag the dog, but would continue to wag the dog after the dog died. 

The lesson with respect to the president’s recess appointments 

the day after the U.S. Senate met in pro forma session on Tuesday, 

January 3rd to commence the second session of this Congress, and 

was scheduled to meet in another pro forma session on Friday, can 

be found in the background Office of Legal Counsel memorandum 

which was done in 2003 that said to the board that it could, indeed, 

delegate all of its powers to a three-member board which then 

could decide, too. 

OLC was wrong then, and the Supreme Court said they were 

wrong. OLC is going to be wrong now, and I believe that that will 

be the final result if litigation comes forward. The problem for the 

parties and for the board, for employees, and for employers is that 

it is likely that that issue cannot be raised until there is an adverse decision by this NLRB, appeal to a circuit court, and then 

perhaps reviewed by the Supreme Court of the United States. 

At a minimum, we are looking at 2 to 3 years of litigation. As 

I said in the brief I wrote in New Process Steel, the questions of 

the board’s delegation and quorum requirements is an institutional 

and legal process issue, not an employee, not a union, not a management question. 

I think many of you know I primarily represent management in 

my private practice. But I want you to know that in the New Process Steel case the amicus curiae brief that I filed was on behalf of 

the Michigan Region Council of Carpenters. 

So this is not a union or management issue. This is a process 

issue. And it is just bad public policy for the president to have 

taken this action. I also want to note particularly the sort of dance 

that the Office of Legal Council has done. I was present at the oral 

argument in New Process Steel, and Deputy Solicitor General 

Katyal argued for the government, a very effective advocate. 

But Chief Justice Roberts, on March 23rd—and this is before 

President Obama recess-appointed Member Becker and Member 

Pearce asked him, ‘‘Well, why doesn’t the president just use the recess appointment authority?’’ Katyal’s answer was, ‘‘Well, yes, the 

recess appointment authority would be available, but in my office 

it is opined that there has to be a minimum recess of 3 days.’’ 

Now, not a year-and-a-half later—and frankly, unfortunately, I 

think for political expediency reasons—OLC now has changed their 

mind. I notice my time is up. Let me just briefly close, Mr. Chairman. 

For the parties who use the board’ processes, and for reasoned 

development of national labor policy, the uncertainty that is going 

to be created by questions about the legality and the authority of 
18 

these appointments will further contribute to doubts about the 

agency and it’s mission. 

For many years, the board, by tradition, has decided that cases 

which of major significance or important precedent should only be 

decided when there is a five-member board and with a majority of 

three. Because of this cloud that is over this board, I think that the 

parties and the employees and the unions and the employers who 

deal with the board, unfortunately, are going to face a very uncertain prospect for the next several years. 

And that is bad public policy. Thank you, Mr. Chairman. 

[The statement of Mr. Devaney follows:] 

Prepared Statement of Dennis M. Devaney, Member, 

Devaney Jacob Wilson, PLLC 

Mr. Chairman, Members of the Committee. It is a privilege for me to be here this 

morning to comment on the public policy implications for the National Labor Relations Board of President Obama’s January 4, 2012 so-called recess appointment of 

three members to the NLRB (a quorum of the Board since the 1947 enactment of 

the Taft Hartley Act and of its potential legal significance in light of the U.S. Supreme Court’s New Process Steel decision). As I said in my interview with the 

Washington Times that the Committee partially quoted in its release announcing 

today’s hearing ‘‘My problem with it is I think there is going to be a cloud over 

whatever they do * * * Anything they do is going to be subject to being undone, 

because they did not have the authority to act.’’ 

The object lesson and relevant precedent that underscores the unfortunate public 

policy consequences for the Board, employees, unions, and employers by such 

brinksmanship appointment and delegation practices is best illustrated by the 

Board’s actions in December, 2007. Finding itself with only four members and expecting two more vacancies when the recess appointments of two members expired 

at the adjournment of the 1st Session of the 110th Congress, the four Board members, delegated all of the Board’s powers to the remaining two members in the face 

of the statute’s clear language, since 1947, that ‘‘[T]hree members of the Board 

shall, at all times, constitute a quorum of the Board.’’ 

On behalf of one of my clients, I appealed an adverse two member decision to the 

U.S. Court of Appeals for the District of Columbia Circuit and then on the client’s 

behalf participated as amicus curiae on the winning side at the U.S. Supreme Court 

in New Process Steel, L.P. v. NLRB, where Justice Stevens writing for the Court 

majority said ‘‘If Congress wishes to allow the Board to decide cases with only two 

members, it can easily do so. But until it does, Congress’ decision to require that 

the Board’s full power be delegated to no fewer than three members, and to provide 

for a Board quorum of three must be given practical effect * * * Section 3(b), as 

it currently exists, does not authorize the Board to create a tail that would not only 

wag the dog, but would continue to wag after the dog died.’’ 

The lesson with respect to the President’s recess appointments the day after the 

U.S. Senate met in pro forma session on Tuesday, January 3, 2012 to commence 

the second session of the 112th Congress and was scheduled to meet in another pro 

forma session on Friday, January 6, 2012 can be found in the background Office of 

Legal Counsel, U.S. Department of Justice memorandum provided to the NLRB in 

2003 which had incorrectly opined that ‘‘if the Board delegated all of its powers to 

a group of three members, that group could continue to issue decisions and orders 

as long as a quorum of two members remained’’ which was rejected by the Supreme 

Court’s in New Process, in Deputy Solicitor General Neal Katyal’s answer on behalf 

of the Obama Justice Department to Chief Justice Robert’s question at oral argument in New Process on March 23, 2010: CHIEF JUSTICE ROBERTS: ‘‘And the recess appointment power doesn’t work why?’’ MR. KATYAL: ‘‘The—the recess appointment power can work in—in a recess. I think our office has opined the recess 

has to be longer than 3 days’’, (see Exhibit 1) and in the effort to distinguish the 

Justice Department’s three day legal position put before the Court in New Process 

in the January 6, 2012 Office of Legal Counsel Memorandum Opinion for the Counsel to the President which argues that former Solicitor General Kagan’s April 26, 

2010 response to the Supreme Court’s April 16, 2010 Order was addressing 

mootness. The problem with that argument is that on March 23, 2010 when Chief 

Justice Roberts asked his question, President Obama had not made his recess appointments of former Member Craig Becker and of then Member and now Chairman 
19 

Mark Pearce which did not take place until March 27, 2010. Thus, Katyal’s answer 

was not given in the context of a question with respect to mootness, but rather as 

the Obama Justice Department’s policy advice that to make a constitutionally sound 

recess appointment, the recess should be of at least three days in duration. Not even 

two years later, the Obama Justice Department rendered an opinion in which they 

opined that ‘‘pro forma sessions do not have the legal effect of interrupting an 

intrasession recess otherwise long enough to qualify as a ‘Recess of the Senate’ 

under the Recess Appointments Clause of the Constitution.’’ 

For the parties who use the Board’s processes and for reasoned development of 

national labor policy, uncertainty created by questions about the legality and authority of these appointments will further contribute to doubts about the agency and 

its mission. For many years, serving members of the Board have adhered to a policy 

by which members have agreed not to change major or significant precedent without 

the presence of a full five member Board. For both institutional and personal reasons, many appointees serving in recess appointments, even when the Board has 

been composed of five members, have been reluctant to take positions on controversial cases. This has frequently resulted in additional delay in adjudication of cases 

and in implementation of non-adjudicative policies by the Board. Importantly, since 

Board procedures allow notational voting and provide that panel decisions are circulated to all serving members who may opt onto the case or designate the case as 

one that should be decided by the full Board, if these recess appointments are at 

some point in the future held constitutionally deficient, the Board will again be 

faced with redoing or revisiting decisions. Such a development will once again undercut confidence in the fairness and due process of Board decision making. 

Parties who receive an adverse decision from the Board will have the right to appeal those decisions. Unlike typical Board decisions, the constitutional issue will not 

be subject to Chevron deference. In the meantime, the regional staff will apply the 

most recent decisions of the Board. Thus, the effect of the decisions will not be limited to the aggrieved party. In fact, the decisions will extend to all parties covered 

by the NLRA. It takes on average more than one year for the Board to decide a 

case. Normally, there would be some closure once the Board decides, but under the 

current scenario there will most likely be legal issues for an extended period of time 

which will add costs for the parties and taxpayers. 

Should the current Board, which includes a majority of purported recess appointees, attempt to delegate powers to the Acting General Counsel or Regional Directors it will raise additional legal questions. In the New Process decision the Supreme Court did not reach the issue of potential unlawful delegations, but a Writ 

of Certiorari Petition raising that direct issue is currently pending before the Supreme Court. It is almost certain that similar challenges will be mounted because 

of the cloud over the current Board as a result of the recent appointments. See HTH 

Corporation, KOA Management LLC DBA Pacific Beach Hotel and Pacific Beach 

Corporation v. National Labor Relations Board. 

Thank you for the opportunity to provide my comments. I will be happy to answer 

any questions you or the Committee members may have. 

EXHIBIT 1

[Laughter.] 

JUSTICE SCALIA: When—when—when is one of the two’s term over? 

MR. KATYAL: In the absence of any further confirmations or other appointments, 

one of the members, Member Schaumber, will leave on August 27th of this year. 

JUSTICE SCALIA: Of this year. At which point there will be some pressure on 

Congress, I guess, right? 

MR. KATYAL: There will. 

JUSTICE GINSBURG: There are—there are two nominees, are there not? 

MR. KATYAL: There are three nominees pending right now. 

JUSTICE GINSBURG: Three? 

MR. KATYAL: Yes. And they have been pending. They were named in July of last 

year. They were voted out of committee in October. One of them had a hold and 

had to be renominated. That renomination took place. There was a failed quorum— 

a failed cloture vote in February. And so all three nominations are pending. And 

I think that underscores the general contentious nature of the appointment process 

with respect to this set of issues. 

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work 

why? 

MR. KATYAL: The—the recess appointment power can work in—in a recess. I 

think our office has opined the recess has to be longer than 3 days. And—and so, 
20 

it is potentially available to avert the future crisis that—that could—that could take 

place with respect to the board. If there are no other questions—— 

CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Richie, you have 3 minutes 

remaining. 

REBUTTAL ARGUMENT OF SHELDON E. RICHIE ON BEHALF OF THE PETITIONER

MR. RICHIE: First, let me address the the issue of what happens if we prevail, 

how will the problem be fixed. There are two types of cases. There are representation cases, and then there are cases dealing with unfair labor practices. The unfair 

labor practices, Mr. Chief Justice, have a limitations period to them. The—the 

issues—the issues with respect to representation have no limitations. So in response 

to Justice Ginsburg’s comment—I believe it was Justice Ginsburg—there’s a—when 

a successor comes on board, these issues, if these—if we prevail and our decision 

is vacated, those are—can be reheard by the board when a successor is in place. 

The D.C. Circuit—— 

JUSTICE SCALIA: Excuse me. Just the—just the representation cases, not the 

unfair labor 6 practice cases? 

MR. RICHIE: That’s correct. 

JUSTICE SCALIA: Wouldn’t the—— 

MR. RICHIE: Well, except to the extent, Justice Scalia, that the statute of limitations has not run on those unfair labor—— 

JUSTICE SCALIA: Yes, I understand. 

MR. RICHIE [continuing]. Cases. 

CHIEF JUSTICE ROBERTS: Wouldn’t—wouldn’t the statute of limitations at 

least be told during the period when they can’t do anything? I suppose that’s a different case. 

MR. RICHIE: That’s an argument. That’s a different case. I don’t know the answer. And I’m sure the litigants would argue that. With respect to the issue of the— 

whether it’s three members that are required on both the board and the group, the 

D.C. Circuit didn’t deal with that, but they did deal with the exception issue. And 

they said—I’m reading from the appendix page of our * * * 

Chairman KLINE. Thank you, sir. 

Ms. Davis, you are recognized. 

STATEMENT OF SUSAN DAVIS, PARTNER, 

COHEN, WEISS AND SIMON, LLP 

Ms. DAVIS. Thank you very much, Chairman Kline, Ranking 

Member Miller, members of the committee, Congresswoman Susan 

Davis—we are not related to each other. It is very nice to be here. 

Thank you very much for allowing me to testify about the needs 

for a fully-functional National Labor Relations Board. And I do 

agree with Mr. Devaney. This is more about process any sort of 

partisan agenda. 

I am a partner in the law firm of Cohen, Weiss and Simon in 

New York City. And if I may have a hats off to the New York-New 

Jersey Giants, as we start. 

For the past 31 years, I have represented nurses and airline pilots, auto workers and steel workers, musicians, actors, truck drivers alike. I have sat at countless bargaining tables across the aisle 

from employers, and we have negotiated collective bargaining 

agreements, some of which have been in effect for decades. 

They have provided wages for workers to support their families, 

to buy a home, for their kids to go to college, to have decent health 

insurance and a decent retirement package. In short, these collective bargaining agreements, and our process, has allowed workers 

in this country to attain the American dream. 

I have represented workers during the Reagan board, during the 

Clinton board, during both Bush boards and during the Obama 

boards. Makes me feel old. [Laughter.] 
21 

There have been decisions from the boards that I have decried, 

and there have been other decisions that I have lauded. However, 

one constant during this period has remained. Through Democratic 

administrations, through Republican administrations, other than 

for a few days at the time the labor board has been allowed to function. 

Every year, it has addressed more than 20,000 unfair labor practice charges of employer illegal conduct. It has awarded an average 

of $93 million a year in workers to back pay. It has conducted 

about 1,900 secret ballot elections every year. And, as this committee has discussed in the past, secret ballot elections are very important. 

Under our system of labor relations, like it or not neither the federal courts nor the states have any jurisdiction whatsoever to administer our national laws. The NLRB is the sole entity that can 

administer the rule of law in labor relations in this country. In a 

very real sense, the rule of law is a substitute for the rule of the 

jungle. 

This is true in our economy, it is true in our society, and it is 

particularly true in the often heated and agitated realm of labor relations. A central feature of the rule of law is that there is a place 

to go for decisions. Again, this is a systematic truth, but is essentially true in the context of labor management disputes. 

Since 1935, the basic rule in this country in labor management 

relations has been the National Labor Relations Act. And the place 

to go for decisions, the only place to go, has been the National 

Labor Relations Board. Those who want to change that reality can 

try to change it, try to change the law, try to abolish the labor 

board. 

But as long as the NLRA and the NLRB stand, they must be permitted to function. That is simply the way our system works. Had 

President Obama not made the three recess appointments to the 

board on January 3 there would have been, we all agree, a two-person quorum-less board that would have shut down. 

The Office of Legal Counsel, like the head of that same office 

under President George W. Bush and like a number of constitutional scholars, determined that the pro forma sessions, where no 

business was conducted, did not constitute constitutional sessions 

that were sufficient to block the president’s recess appointment 

power because he could not obtain the advice and consent of the 

Senate in a very real sense. 

For those of us who live outside the Beltway, I must say that the 

idea that you could post one person in the chamber for a few seconds every couple days when the Senators were in their home 

states, when, under Senate order, there was not ability to conduct 

any business, for those of use who don’t live in this town, that it 

is to exalt the minutest of form over the weightiest of substance. 

The constitutional debate is fascinating. Haven’t spent this much 

time reading about it in many, many years. But it obscures the real 

issue that is before this committee. What will happen to workers, 

what will happen to our system of collective bargaining if the labor 

board is shut down. I think that is the question, with all due respect to all of us, that you need to focus on today. 
22 

Workers who are fired—and that is one out of every four in an 

organizing campaign—will have their cases investigated, but will 

have no final back pay award, will have no final reinstatement 

award, if there is no labor board. Workers may file election petitions, there may even be elections. But there will be no election 

order and no election finality, and thus no requirement of collective 

bargain, even for those workers who want to select a union. 

Last month, in New York City, a strike of 20,000 nurses that I 

represent was averted because the National Labor Relations Board 

enforced the obligation of the union and of the four major hospitals 

in New York City to bargain with each other in good faith. It was 

painful, but we did it. 

Ultimately, we reached a contract that protected the nurses. It 

protected the patients. It protected the hospitals. And it protected 

those of us who live and work in New York City who will have to 

go to a hospital one day. The rule of law enforced by the labor 

board, not the rule of the jungle that was in effect in the 1930s, 

saved the day. 

If the labor board is not able to function it will affect all of us, 

but most of all it affect workers in this country who have the least. 

They will pay the highest price. You must measure that price not 

only in lost jobs and in lost back pay, but in lost opportunities to 

move into the middle class. That is the American dream. 

That price the president determined, on January 3rd, in light of 

the view of the Office of Legal Counsel which had been supported 

by its predecessor, was simply too high. 

Thank you very much. I look forward to the opportunity to answer your questions. 

[The statement of Ms. Davis follows:] 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 

Chairman KLINE. Thank you. 

Mr. Marculewicz? 

STATEMENT OF STEFAN J. MARCULEWICZ, 

SHAREHOLDER, LITTLER MENDELSON 

Mr. MARCULEWICZ. Thank you, Chairman Kline, and Ranking 

Member Miller, and members of this committee for inviting me to 

testify before you on this important topic. 
39 

My testimony today is going to focus on the practical implications 

of President Barack Obama’s January 4th, 2012 appointments of 

NLRB members Richard Griffin, Sharon Block and Terence Flynn; 

should those appointments be deemed invalid because of the manner in which the president has made them. I am not here to comment on the process followed by the president in making those appointments or its constitutionality. 

I will leave that to others who have already testified. However, 

as a labor lawyer who spends much of his day advising companies 

on the ins and outs of compliance with the intricacies of the National Labor Relations Act and the decisions of the National Labor 

Relations Board, I do feel I have a certain understanding of the 

confusion and uncertainty that will result from decisions of this 

new board, particularly given that the quorum may ultimately be 

determined invalid by the courts. 

That uncertainty will be seen far and wide. Moreover, I believe 

it will have a particularly disparate impact on small business, 

which often lacks the resources in both time and money to pursue 

rights they might otherwise legitimately have. Only a few years 

ago, the United States Supreme Court issued its decision in New 

Process Steel. In that case, the court concluded that Congress had 

not conferred authority to allow a two-member panel to decide 

cases at the NLRB. 

During the period of time that New Process Steel was making its 

way through the courts, the two-member NLRB decided nearly 600 

cases. For the most part, those cases consisted of routine determinations by the board on which the two members—one a Democrat, the other a Republican—could agree on applicable law. Controversial matters were left for another day. 

Once the Supreme Court issued its decision in New Process 

Steel, each of those decisions was rendered invalid. Each one had 

to be revisited by the board once it had a proper quorum. Suffice 

it to say this created a significant amount of uncertainty within the 

ranks of those whose cases had been decided by the two-member 

panel. 

For the period of time, that uncertainty remains. Then, eventually, the National Labor Relations Board established a process to 

revisit each of those decisions and work through the cases. Because 

the cases decided by the two-member panel were generally noncontroversial, and ones on which they could agree on the law, the 

NLRB was able to revisit and resolve them without lasting effects. 

In the current situation, however, with a full complement of five 

boardmembers, the NLRB is likely to rule on many substantive 

points of law. Some of those points of law are highly controversial. 

Not only will such decisions impact the parties involved and the 

cases themselves, but because the NLRB decisions become the law 

of the land they will also directly impact other employers, labor 

unions and even individuals. 

If President Obama’s recent nominations are determined to be 

invalid, the lasting effects could be substantial. Every decision 

issued by this board will be accompanied by the very real possibility that it might be sustained. Companies trying to comply with 

the law will face a dilemma on whether to comply with the decisions issued by this board or refuse to do so. 
40 

For many, waging a lengthy legal battle will prove too costly in 

time, money and other resources to justify the expenditure. Many 

employers will simply comply. However, if the law created by this 

board is ultimately annulled by the courts it will be very difficult 

to undo that process. 

An overwhelming majority of NLRB cases are settled or resolved 

at the regional office level. They never reach the full NLRB. Yet 

regional office action is premised upon the current state of the law 

as defined by the NLRB. If this practice holds true, even in light 

of the current composition of the board, then the same portion of 

cases are, hopefully, to be resolved. 

Only now they will be resolved pursuant to precedent that is unstable. When a party resolves a matter at the regional office level, 

typically that party commits to taking action in furtherance of that 

resolution. That action is relied upon, and followed by, those it affects. Such action could include the agreement upon the scope of 

a bargaining unit that may exclude certain employees. 

It could include creation and dissemination of a new company 

policy on social media or e-mail usage that affects the entire workforce. Or it could include permitting non-union employee access to 

an employer’s property, whether it is the employer’s premises or its 

e-mail system. The reality is that the NLRB doctrine becomes the 

fabric of labor relations in our economy quickly, as employers seek 

to comply with the law. 

If such doctrine is annulled in its entirety, as is possible here, 

its effects will be difficult and costly to remove. One might argue 

that any decision by an NLRB panel, even one in which members 

have confirmed by the Senate, is subject to being overturned by the 

courts. That is true, but such situations are addressed on an individual and case-by-case basis. 

What distinguishes the current scenario we are facing is that a 

determination by the courts that the current NLRB does not have 

the authority to issue any decisions will potentially render every 

single decision made by the panel null and void. Each year, the 

board decides hundreds of cases, and the impact of those decisions 

is widespread. 

A decision that nullifies all of those cases will have a real impact 

on employers, unions and workers. One of the hallmarks of our 

legal system is the fact that it provides a certain degree of predictability to those parties who are subject to its laws. 

Given the fact that the current board’s composition may be determined invalid, there is a risk that we will lose that predictability 

and certainty in our labor relations law for what could be an extensive period of time. That loss will have a direct impact on the many 

people who are subject to the nation’s labor laws administered by 

the NLRB. I ask that you take this into consideration as you consider this issue. 

Thank you very much for giving me the opportunity to present 

my views. 

[The statement of Mr. Marculewicz follows:] 

Prepared Statement of Stefan J. Marculewicz, Esq., Littler Mendelson, P.C. 

I wish to thank you Chairman Kline, Ranking Member Miller, and Members of 

this Committee for inviting me to testify before you on this important topic. 
41 

1 130 S.Ct. 2635 (2010). 

My name is Stefan Marculewicz, and I am a Shareholder in the Washington, DC 

office of the law firm of Littler Mendelson, P.C. With nearly 900 attorneys, Littler 

is the largest law firm in the world dedicated exclusively to the practice of labor 

and employment law. The views I express to you here today in this testimony are 

my own. I am not appearing here today on behalf of any client or other organization. 

My testimony today will focus on the practical implications of President Barak 

Obama’s January 4, 2012 appointments of NLRB Members Richard Griffin, Sharon 

Block, and Terrence Flynn should those appointments be deemed invalid because of 

the manner in which the President made them. I am not here to comment on the 

process followed by the President making these appointments, or its constitutionality. I will leave that to others. However, as a labor lawyer who spends much 

of his day advising companies on the in’s and out’s of compliance with the intricacies 

of the National Labor Relations Act, and the decisions of National Labor Relations 

Board, I do feel I have a certain understanding of the confusion and uncertainty 

that will result from decisions of this new Board, particularly given that the quorum 

may ultimately be determined invalid by the courts. That uncertainty will be seen 

far and wide. Moreover, I believe it will have a particularly disparate impact on 

small businesses which often lack the resources in both time and money to pursue 

rights they might otherwise legitimately have. 

Only a few years ago, the United States Supreme Court issued its decision in New 

Process Steel, L.P. v. NLRB.1 In that case, the Court concluded that Congress had 

not conferred authority to allow a two member Board to decide cases. During the 

period of time that New Process Steel was making its way through the courts, the 

two member NLRB decided nearly 600 cases. For the most part, those cases consisted of routine determinations by the Board on which the two members, one a 

Democrat and the other a Republican, could agree on the applicable law. Controversial matters were left for another day. Once the Supreme Court issued its decision 

in New Process Steel, each of those decisions were rendered invalid. Each one had 

to be revisited by the Board once it had a proper quorum. Suffice it to say this created a significant amount of uncertainty within the ranks of those whose cases had 

been decided by the two member panel. For a period of time, that uncertainty remained. Then eventually, the NLRB established a process to revisit each of those 

decisions and worked through the cases. Because the cases decided by the two member panel were generally non-controversial and ones on which they could agree, the 

NLRB was able to revisit and resolve them without lasting effects. 

In the current situation, however, with a full complement of five members, the 

NLRB is likely to rule on many substantive points of law. Some of these points of 

law are highly controversial. Not only will such decisions impact the parties involved in the cases themselves, but because NLRB decisions become the law of the 

land, they will also directly impact other employers, labor unions and even individuals. If President Obama’s recent nominations are determined to be invalid, the 

lasting effects could be substantial. Every decision issued by this Board will be accompanied by the very real possibility that it might not be sustained. Companies 

trying to comply with the law will face a dilemma of whether to comply with decisions issued by this Board or refuse to do so. For many, waging a lengthy legal battle will prove too costly in time, money and other resources to justify the expenditure. Many employers will simply comply. However, if the law created by this Board 

is ultimately annulled in the courts, it will be very difficult indeed to pick up the 

pieces. 

An overwhelming majority of NLRB cases are settled or resolved at the Regional 

Office level. They never reach the full NLRB. Yet Regional Office action is premised 

upon the current state of the law as defined by the NLRB. If this practice holds 

true even in light of the current composition of the Board, then that same portion 

of cases are likely to be resolved. Only now they will be resolved pursuant to precedent that is unstable. When a party resolves a matter at the Regional Office level, 

typically that party commits to taking action in furtherance of that resolution. That 

action is relied upon and followed by those it affects. Such action could include the 

agreement upon the scope of a bargaining unit that may exclude certain employees, 

it could include creation and dissemination of a new company policy on social media 

or email usage that affects an entire workforce, or it could include permitting nonemployee access to an employer’s property whether it is the employer’s premises or 

is email system. The reality is that NLRB doctrine becomes part of the fabric of 

labor relations in our economy quickly as employers seek to comply with the law. 

Moreover, it impacts employers of all types, large and small. If such doctrine is annulled in its entirety, as is possible here, its effects will be difficult and costly to 

remove. 
42 

2See, NLRB Memorandum OM 12-31 (January 24, 2012) and NLRB Memorandum OM 11- 

74 (August 18, 2011). 3See, NLRB Press Release Acting General Counsel issues second social media report, (January 24, 2012), https://www.nlrb.gov/news/acting-general-counsel-isses-second-social-media-report (last visited February 3, 2012). 4 30-CA-17185. See also, Roundy’s Inc., 356 NLRB No. 27 (November 12, 2010). 

5 Register Guard, 351 NLRB 1110 (2007). 

One might argue that any decision by an NLRB panel, even one where each member has been confirmed by the Senate, is subject to being overturned by the courts. 

That is true, but such situations are addressed on an individual and case-by-case 

basis. What distinguishes the current scenario we are facing, is that a determination by the courts that the current NLRB does not have the authority to issue any 

decisions will potentially render every single decision made by the panel null and 

void. Each year, the Board decides hundreds of cases, and the impact of those decisions is widespread. A decision that nullifies all of those cases will have real impact 

on employers, unions and workers. 

One of the hallmarks of our legal system is the fact that it provides a certain degree of predictability to those parties who are subject to its laws. Given the fact that 

the current Board’s composition, may be determined invalid, there is a risk that we 

will lose that predictability and certainty in our labor relations law for what could 

be an extensive period of time. That loss will have a direct impact on the many people who are subject to the nation’s labor laws administered by the NLRB. I ask that 

the members of this Committee take these practical effects into consideration in 

your deliberations. 

Thank you for giving me this opportunity to present my views. 

Examples 

There are some significant legal issues currently being considered by the NLRB 

that will have a direct impact on employers, unions and employees. The following 

are a few examples: 

1. Social Media 

Social media is the latest means by which much of the population communicates, 

and as evidenced by the recent news involving Facebook’s announced initial public 

offering, will continue to grow into the fabric of our society and economy. The NLRB 

has become very active with respect to the interplay between communications 

through social media and the Section 7 rights of employees to engage in protected 

concerted activity. The NLRB’s activities will impact both the union and non-union 

workplace. While the NLRB’s Office of the General Counsel has been very active in 

its efforts to mold policy in this area,2 there has been little in the way of guidance 

from the Board itself on how it will ultimately settle on what constitutes a proper 

social media policy as a matter of law. It is possible that within the coming months, 

the Board, which currently has three cases pending before it on this subject, will 

make new law.3 Those decisions, when they come, will be very far reaching and 

have a significant impact on a large percentage of employers and workers in the 

United States. Not only will such decisions impact the parties to each of those cases, 

but employers and workers will be required to reassess their approach to social 

media with respect to the workplace. Employers will issue new or revised policies, 

and employees will be subjected to them. If the Board’s decisions on this point are 

later overturned, then all of the work done to comply with the nullified precedent 

will have been wasted. 

2. Property Rights and Email Access 

Another key issue pending before the Board relates to access to private property 

by non-employees. The case currently pending before the Board on this issue is 

Roundy’s, Inc.4 This case has generated a significant amount of interest among the 

employer community. In late 2010, the Board requested briefing on certain issues 

in that case. In particular, the Board sought positions pertaining to the core issue 

of non-employee access to private property. However, the Board also sought positions related to the law governing the ability of employers to restrict employees from 

using a company email system for organizing activities.5 A decision by the NLRB 

on this topic will have an immediate impact on the daily workplace. Not only will 

it have a direct effect on an employer’s ability to manage access to its property, but 

there are also indications that it will impact the ability of the employer to manage 

its internal email systems. A decision by this Board in the Roundy’s case will 

present employers with an immediate dilemma regarding their policies and how 

they should enforce them. Those employers who are unwilling or unable to challenge 

the viability of such a decision through the expensive litigation process before the 
43 

6Specialty Healthcare, 357 NLRB No. 83 (2011). 

7 Id. 

8 NLRA §9(c)(5). 29 U.S.C. § 159(c)(5). 

9See, NLRB MEMORANDUM OM 12-17 (December 7, 2011); NLRB MEMORANDUM GC 11- 

11 (April 12, 2011) 10Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006). 11Labor Board Chief to Push Organizing Rules, Sam Hananel (January 26, 2012 Associated 

Press). 

Board, will simply comply and that compliance will have ramifications throughout 

the workplace and beyond. 

3. Bargaining Units 

In August of 2011, the Board issued a decision in the case Specialty Healthcare. 

In that case, the Board articulated a new standard for determining the appropriateness of bargaining units of employees. Specifically, the Board stated that groups of 

employees who were ‘‘readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors)’’ will be found appropriate, assuming they share a community of interest as determined using the traditional criteria.6 Under the new standard, such a group can only be placed in a larger 

unit with which it shares a community of interest if the party seeking such placement can demonstrate that the employees in the smaller group share ‘‘an overwhelming community of interest’’ with the rest.7 Although there have been a few 

cases that address certain aspects of this case, the full extent and scope of this decision is still not clear. It is therefore likely that this current Board will be called 

upon to decide cases where issues arising out of Specialty Healthcare must be addressed. Such clarification by the current Board will lend further uncertainty to the 

process. Elections and unit determinations serve to identify those who are eligible 

to vote and be represented by a labor union, and those who are not. The law, which 

is well-developed in the area of defining what constitutes an appropriate unit, is 

careful to avoid disenfranchising employees. Indeed, it is unlawful for the Board to 

find a unit appropriate merely because it is coextensive with the extent to which 

the employees have been organized.8 Once a unit is established, a majority of that 

unit has selected an exclusive bargaining representative, and the parties have secured a collective bargaining agreement, it is very difficult to reverse that process. 

Not only have parties invested time and resources to reach that end, but undoing 

such a situation can create unstable employee relations that can have a far reaching 

impact on an employer’s operations. 

4. Other Important Topics 

There are several other items that have been identified by the NLRB as important topics that may well result in significant substantive changes to the law.9 Examples include, but are not limited to, the following: 

Cessation of dues check-off. Currently the law permits an employer to cease dues 

check-off upon the expiration of a collective bargaining agreement. 

Information Requests for Financial Records. Current Board law permits unions to 

seek financial records of employers in bargaining if the employer pleas poverty or 

asserts that it cannot afford demands made by the union. 

Supervisory Authority to Assign and Direct. Current Board law regarding the authority of supervisors to assign and direct arises out of the Oakwood Trilogy of 

cases.10

An employer’s right to withhold witness statements from a union. Current Board 

law permits an employer to object to producing witness statements obtained during 

an internal investigation to a union pursuant to an information request. 

Decisions by the Board on any one of these cases will be very significant and could 

have immediate and far reaching implications. That such decisions may be clouded 

with the risk that they will be nullified, should be avoided. 

5. Regulatory Agenda 

The NLRB recently published final rules with respect to a notice posting requirement, and amendments to the rules governing representation elections. Earlier this 

year, NLRB Chairman Pierce indicated that he intended to engage in further rulemaking in the area of representation election procedure.11 The Chairman’s expression of intent is not a surprise given his statements at the November 30, 2011 meeting of the Board in which they adopted NLRB Resolution No. 2011-1. Such regulations, will have a substantial impact on employers, unions and workers, and are 

likely to be followed immediately upon their implementation. 
44 

Chairman KLINE. Thank you, sir. Thank you, all. I am just looking at the panel, four attorneys, all very distinguished, some agreement and some disagreement. But I know that Mr. Andrews was 

probably extremely excited to walk in and see a panel of nothing 

but lawyers. Is that not true? 

Mr. ANDREWS. It is a vast improvement over what the committee 

usually does, Mr. Chairman. [Laughter.] 

Chairman KLINE. I thank the gentleman. And did you come in 

wearing your school colors, as well, Mr. Andrews? You went—I forget which law school you—here is your opportunity. 

Mr. ANDREWS. I went to Cornell. 

Chairman KLINE. There you go. Okay. I like to get that out early 

because I knew that it was coming. 

All right, seriously, we have the concerns that many of us here 

on the panel have—probably on this side of the aisle—have been 

addressed by some of you. And that is that there is a great deal 

of uncertainty about the legality and the certainty of decisions that 

are made by this NLRB with these new members appointed. 

And so there will be challenges to decisions made. Starting first 

with you, Mr. Marculewicz, how will employers challenge the constitutionality of these recess appointments? What will they do? 

What are the practical steps? What is going to happen? 

Mr. MARCULEWICZ. Well, the practical steps would be that if the 

National Labor Relations Board issued an order—first of all they 

wouldn’t issue an order. But if there was a certification of a representative, a labor union for example, that would be a—well, if 

there would have been a certification by the NLRB of a labor union 

as the exclusive representative of a group of employees or a bargaining unit of employees, the NLRB would issue that certification. 

And then the employer would refuse to bargain; called a technical refusal to bargain, technical 8-A-5. In that situation, with the 

current board panel, if that would then be, they would file a motion 

for summary judgment or the NLRB would file a complaint. There 

would be a motion for summary judgment, and the case would then 

be—an order would be issued by the National Labor Relations 

Board to compel the employer to bargain with that group of employees, with that labor union. 

If that were to take place, at that point then the employer would 

be able to appeal that to the court of appeals, and then bring the 

matter into court. That would be one way it would happen. If the 

NLRB also issued a decision, or an order, in a unfair labor practice 

case, then you would have a situation where that order would then 

be entered by the National Labor Relations Board. And then it 

would be appealed by the employer. 

So virtually every case, and substantive determination by the 

NLRB, which comes in the form of an order, would likely, potentially make its way into the circuit courts. 

Chairman KLINE. So the employer—one of the options would be 

for the employer just to refuse to bargain. Would that be good for 

employees? 

Mr. MARCULEWICZ. Uh, no. 

Chairman KLINE. Nor employers. 

Mr. MARCULEWICZ. Nobody. 
45 

Chairman KLINE. You would have a real problem. It is interesting to look at your testimony, talking about the decisions following the New Process Steel case, where you had some 600 decisions rendered invalid, and then some 90 appeals or something like 

that to federal court. Expensive? 

Mr. MARCULEWICZ. Extremely. 

Chairman KLINE. And again, disruptive. And so if you are an employer now, and you are looking at this situation, you are going to 

have to make a decision about actions that you take and not knowing if the board’s decision is going to be upheld. 

Mr. Devaney, in 2008, the Senate used pro forma sessions to stop 

then-President Bush from making recess appointments to the 

NLRB. Why did they do that? 

Mr. DEVANEY. Well, unfortunately, Mr. Chairman, I think that 

was—— 

Chairman KLINE. Yes, thank you. 

Mr. DEVANEY. Unfortunately, I think that was about public policy. It was about partisan politics. And here is the reason I say 

that. You were kind enough to share with me the CRS studies of 

the recess appointment process. And Majority Leader Reid was 

quoted in 2007 as the reason that they instituted the pro forma 

sessions was to prevent President Bush from recess-appointing 

members of the NLRB. 

And so the complaints that were raised about the failure of the 

board to function in 2008 were because of the pro forma sessions 

instituted by the Democrat-controlled Senate, at this point by Majority Leader Reid. It is amazing to me. Now, you know, not 5 

years later, Majority Leader Reid was asked about, well, what did 

he think about the president’s purported recess appointments on 

January 4th. 

And he said, well, you know, it is a great thing. I don’t know how 

you can consistently take those positions in light of the history of 

this. And as I say, for the board it is a particularly unfortunate development. The other thing I would like to comment, to follow up, 

the case that I took after New Process Steel we had an adverse 

board decision in 2006. 

My client then appealed to the D.C. Circuit. We were participants in the amicus curiae process in the Supreme Court. The Supreme Court ruled favorably to our position. I eventually, in 2011, 

was able to settle that case with the regional office of the NLRB. 

But my client, in that instance the Michigan Regional Council of 

Carpenters, expended a tremendous amount of money and resources to vindicate the rights that it was trying to vindicate. 

And it was because the two-member board didn’t have the authority. If we face the same thing, the parties who want to challenge us are looking two or 3 years out before we get resolution. 

Chairman KLINE. Thank you. My time has expired. 

Mr. Miller? 

Mr. MILLER. Thank you. Thank you very much, all of you, for 

your testimony. 

Ms. Davis, you make the point in your testimony that, absent the 

functioning board, there really is no other place for the employer 

or the employee to seek a remedy, where—in whatever instance, 

how that is presented in the workplace, is that—— 
46 

Ms. DAVIS. Yes. There is no place judicially for them to seek remedy. They could resort to what we lived through in the early 1930s, 

which is this massive strikes and massive lockouts. And we are actually seeing a lot of those lockouts now. There was an article a 

couple of weeks ago in The Times about employers resorting to that 

as a tactic. 

But there will be no orderly place where disputes can be resolved. That is essentially leaving it to the law of the jungle. If I 

may just address this uncertainty question for one moment? 

Mr. MILLER. Yes. 

Ms. DAVIS. I think it is wrong for three reasons. Substantively 

it is wrong, process-wise it is wrong. And it misses the point. It 

misses what is at stake. With respect to the substance, the 11th 

Circuit, which looked at this, said there is a presumption of constitutionality in the president’s recess appointments. Happened 

back since George Washington. 

President Obama has appointed a fraction of the people that the 

other administrations have appointed. So I think the constitutional 

argument which, if you look at the OLC opinion, goes back to a 

1921 decision by the attorney general, is sound. As a process matter—and I want to specifically address New Process, which several 

of the witnesses addressed—I think that is a terrific example of 

what we would have here. 

Because we had a two-member board functioning, not knowing 

they were legally quorum-less, for 27 months. And they issued 

about 600 decisions before the Supreme Court said that they were 

quorum-less. So what happened at this point? That is really the 

comparative that we have here. 

What happened was that 400 of the cases, two-thirds of the 

cases, the party said, ‘‘We are fine with that two-person decision,’’ 

and they went away. They needed someone to resolve their disputes, and they were resolved. The other third of the cases, the 

vast majority of them—I think 98 percent of them—were resolved 

within a six-month period. 

So this notion of this paralysis of the board—if somehow, at some 

future time, the president, who is presumed to have acted lawfully, 

is determined to have not acted lawfully—I think is overblown. But 

more importantly, what is going to happen to workers in this country who are fired, who are threatened, who are surveilled. What is 

going to happen to union’s employers that really want to work with 

each other to help a company, to help workers? All that will be put 

on hold. 

And I think that harm far outweighs any speculative uncertainty 

of the board’s not functioning. 

Mr. MILLER. Thank you very much. What really concerns me in 

your testimony, and this has been a concern of mine, of my service 

on this committee—that over the years this practice continues, 

where workers are fired or they lose their overtime or they lose an 

advantageous shift or whatever penalty can be imposed upon them 

for discussing collective bargaining, discussing the desire to have a 

union, telling their employer they would like to talk to others about 

doing this. 

However they manifest their interest in a union, they lose their 

job. And it is a very difficult process to get back to that point and 
47 

secure the wages that they lost. It is simply a securing of the 

wages they lost, offset by, I guess, whatever employment they find 

in the meantime. 

Meanwhile, their families undergo a huge amount of economic 

stress. You make the point that year in and year out about an average of $93 million in back wages is restored to these individuals. 

And I assume, in some instances, plus their employment restored. 

Ms. DAVIS. Right. 

Mr. MILLER. I don’t know many middle class families that can go 

through that. But that, obviously, is the people who are being punished here. As you point out, two-thirds of the argument says we 

know most of the things that come here are worked out in front 

of the board one way or the other and because a very experienced 

panel of people seek to have these things resolved. 

But now we create this kind of impasse that really just pounds 

workers with employers. And unfortunately, too many employers 

are willing to fire them or punish them in some other way because 

they broached the subject. And that, to me, is the real concern 

here. 

The notion of whether this was politics in 2008 or is politics 

today, the fact is it has been politics all along. I think the president 

was right to breach, I think George Bush was probably right to 

breach, if he believed in those appointments. The fact of the matter 

is, you know, we had members of the House, and the speaker, 

make a decision not to recess. So the Senate couldn’t recess for the 

specific purpose that they couldn’t consider recess appointments. 

So you know, this is all interesting back and forth. But the fact 

of the matter is, I guess this will be resolved in the court. But you 

know, this board has been under assault by members of this committee who have sought to tamper with the work and intimidate 

the general counsel of this board. 

We see the governor of South Carolina asking that only Republican members resign. We see a major law firm with business before the board conducting conversations with the Republican member of the board, saying, ‘‘Well, you know, if you ever decide to 

leave we would be interested in you.’’ 

Hello. This board has been under assault, as have workers’ 

rights, all across the country at every level of government. And 

maybe it is about time the court stepped in and decide what can 

be done and can’t be done. 

Chairman KLINE. The gentleman’s time has expired. 

Dr. Roe? 

Mr. ROE. Well, as an obstetrician, I get a little sweaty palm and 

my heart rate goes up when I am in front of four lawyers, just to 

put that disclaimer out here. [Laughter.] 

But I think I want to go back to this little document I am holding 

in my hand right here, called a Constitution. And this is messy, 

and it makes it hard to do. And it was specifically done for that 

reason. And I want to start with Mr. Cooper. 

And I have read this, and certainly read in Article One, Section 

Five, Clause Four. And it is very clear to me your description just 

a moment ago was very clear to me what was done is unconstitutional. Now, the courts will decide that—not me, and not anybody 

in this room. 
48 

But I have looked up every NLRB appointee since 1936. I did a 

research on every single one of them, including Mr. Devaney sitting 

right there. He was a recess appointment, but he was then vetted 

by the Senate. 

And Mr. Cooper, why is that process important to have these 

people go in front of the Senate for a hearing, for background 

checks and so forth, if you could enlighten us there. 

Mr. COOPER. I will be happy to, Mr. Congressman. And I can’t 

provide a explanation for its importance better than the one that 

Alexander Hamilton did in the Federalist Papers, in Federalist No. 

67 and again in Federalist No. 76. Alexander Hamilton recognized, 

on behalf of the framers essentially, that the regular appointment 

process was divided between the president and the Senate, a majority of the Senate, in order to ensure that a president did not 

have absolute power over the appointment of federal officers. 

There was a big debate, in fact, prior to the time they settled 

upon that joint responsibility whether or not the Congress should 

have the exclusive power to make appointments to vacant positions. 

And so the compromise was this shared joint responsibility so 

that the Senate would provide a check, in our vast system of checks 

and balances between the branches of government, particularly the 

political branches, to ensure that. And I think the formulation is 

that unfit characters, or nominees who were there as a product of 

regional prejudice or favoritism of some kind or another, would not 

be appointed and made part of the federal core of officers. 

I think the history of the clause, and the recess appointment 

clause, makes clear that this was a fundamental check on executive 

power. 

Mr. ROE. I totally agree with that. And then to follow that up, 

why would any president make anything but a recess appointment 

if they can do that? If they can just bypass—that clearly was put 

in there for that reason. To prevent a president from having authoritarian power. 

So if you take the current ruling that they have, that the Justice 

Department brought down in this case, why would a president not 

just do that any time with any appointment, and just bypass the 

Senate? 

Mr. COOPER. Congressman, it is a fair question. Because I do believe that under the theory of the Office of Legal Counsel for the 

constitutionality of these particular January 4 recess appointments 

I think I would be hard pressed to see any genuine constitutional 

restraint on the president’s ability to use the recess appointment 

power. 

There would be continuing political restraints, certainly. And I 

am quite certain that a president who made a regular practice of 

this, because the founders’ original understanding what the genuine purpose of the clause, the recess appointment clause, contemplated had been essentially eliminated and those restraints had 

been abandoned. 

I still have no doubt that the Senate would react, and this body 

would react, negatively to a regular process of this kind of use of 

the recess appointment power. But the only restraint would be a 
49 

political one. And the only tools left would be political tools in the 

hands of this body and in the Senate. 

Mr. ROE. Just one other quick question because my time is about 

up. What happens, Mr. Marculewicz, with the regional offices, 

when they make a decision, if this is ultimately overturned? 

Mr. MARCULEWICZ. Well, I think it—— 

Chairman KLINE. The gentleman’s time has expired. 

Mr. ROE. Let me say, let me finish, with one thing. At the conclusion of the Constitutional Convention, Benjamin Franklin asked, 

‘‘What have you wrought?’’ He answered, ‘‘Republic, if you can keep 

it.’’ I say we have to follow this book or we can’t keep it. 

Chairman KLINE. Thank you. Then gentleman’s time has expired. 

Mr. Andrews? 

Mr. ANDREWS. Thank you, Mr. Chairman. At a time when we 

should be considering the president’s job proposal, we are having 

an exquisitely interesting constitutional law seminar. So I wish we 

weren’t doing this, but I thank the four panelists for their preparation and the wisdom of their testimony. 

Mr. Cooper, your answer to the question as to who gets to decide 

whether the Senate’s really in session or in recess is the Senate; 

because the Senate says so. And you testified that the Senate’s determination should end the matter. Let me ask you this. If the Senate went into session, and by unanimous consent deemed that it 

would be considered to be in session forever, the Senate is a continuous body. 

The Senate, by UC, says, ‘‘We hereby declare we are always in 

session.’’ And then you had a sufficient number of senators refuse 

to vote for cloture and refuse to take up presidential nominees. So 

presidential nominees never get a vote. Does that withstand constitutional muster? 

Mr. COOPER. I think that would be a much, much more difficult 

question, Mr. Andrews. 

Mr. ANDREWS. That is why I ask it. Does it withstand constitutional muster? What do you think? 

Mr. COOPER. I beg your pardon? 

Mr. ANDREWS. Does it withstand constitutional muster? 

Mr. COOPER. I have serious doubts that it would. But I do believe 

that—— 

Mr. ANDREWS. Okay, what is defective about it? What is is wrong 

with it that it might not pass constitutional muster? 

Mr. COOPER. Well, Mr. Andrews, it is not within the Senate’s authority, I would concede, to say that something exists that does not 

exist. 

Mr. ANDREWS. We think they do that all the time, but that is—— 

[Laughter.] 

Mr. COOPER. And if, in fact, the reality was that the Senate was 

in recess as a matter of fact—— 

Mr. ANDREWS. Well, but don’t they have the power, according to 

your testimony, to define what recess means? I mean, there is an 

existential meaning, I guess, to the term ‘‘recess.’’ But according to 

you, the Senate is in recess if the Senate says it is in recess; it is 

in session if it says it is. Is there some limitation to that principle? 

What is defective about my hypothetical? 
50 

Mr. COOPER. I would say this, Mr. Andrews. The Senate can say 

it is in session if, in fact, it is in session. And the pro forma sessions are, in fact, sessions of the Senate. 

Mr. ANDREWS. But the interesting phrase here is ‘‘in fact,’’ and 

who gets to define that. And you say exclusively the Senate gets 

to define that. Exclusively. 

Mr. COOPER. Within constitutional limitations. 

Mr. ANDREWS. Okay, let us say that somebody thinks that they 

haven’t defined it within constitutional limitations. And so they get 

standing somehow. And they file suit, and argue that the Senate 

exceeded its constitutional limitations, which you acknowledge. 

On page four of your testimony—excuse me, page five of your testimony—you approvingly quote a D.C. Circuit opinion that says the 

meaning of ambiguous constitutional rules is non-justiciable. So 

wouldn’t that mean that the court couldn’t even consider the argument that the Senate had exceeded its constitutional authority? 

Mr. COOPER. I do not think that would apply in this context, Mr. 

Andrews. 

Mr. ANDREWS. What is different about it? Why would it be—you 

said, or at least you approvingly cited, a case that said that interpretation of the constitutionality of Senate rules is not justiciable. 

Why would it be justiciable under my hypothetical? 

Mr. COOPER. It is not justiciable in any case in which it is ambiguous. And at a minimum here, the Senate’s own interpretation of 

its rules is ambiguous. And so this court must defer to the Senate 

itself about its rules and about the Senate’s interpretation of its 

rules, which here—— 

Mr. ANDREWS. So is it—— 

Mr. COOPER [continuing]. Makes clear it is in pro forma session. 

Mr. ANDREWS. Should the court—if you were clerking, as you so 

distinctively did, for Chief Justice Rehnquist—if this case came before the court, and you were writing—the justice asked you for your 

opinion—is the case justiciable, or not, that I stated? Would the 

court hear it, or not? 

Mr. COOPER. I believe that the court could hear this case as 

being justiciable. 

Mr. ANDREWS. But what is the difference between my hypothetical—or the Senate simply deems itself to be in session, and 

the court interpreting the facts before us here? Because I think you 

think that these facts are not justiciable. Because you said the Senate’s determination should end the matter. 

Shouldn’t the court have the chance to review this? 

Mr. COOPER. The court would, in my opinion—— 

Mr. ANDREWS. Well, that makes it justiciable, doesn’t it? 

Mr. COOPER [continuing]. Defer to the Senate’s interpretation of 

its rules. 

Mr. ANDREWS. But if it is, that would mean it is justiciable, 

though, wouldn’t it? 

Mr. COOPER. It would mean that the courts, like the Congress 

and the president, should defer to the individual body’s view with 

respect to its rules, and whether or not—— 

Mr. ANDREWS. But I thought you said—— 

Chairman KLINE. The gentleman’s justiciable time has expired. 

Mr. ANDREWS. Thank you. Thank you, Mr. Cooper. 
51 

Chairman KLINE. Dr. DesJarlais? 

Mr. DESJARLAIS. Thank you, Mr. Chairman. 

Mr. Cooper, I think we are just kind of in the middle of this. 

When these recess appointments are challenged in federal court, in 

your opinion will the court give deference to the Senate, or the 

White House, and why? 

Mr. COOPER. This is a good follow-on question, Mr. Congressman, 

because I think it is clear from the court decisions in this area that 

the Senate’s view of its own rules—under its rulemaking power, 

just as would be true of this body’s rulemaking power and its interpretation of its own rules—should be deferred to by the other 

branches of the government. 

The president isn’t empowered to effectively interpret the Senate’s rules and to decide for himself in contradiction to the Senate’s 

own view that the Senate is or is not in session, at least insofar 

as there is a factual basis to ground the Senate’s judgment on that 

point. 

And certainly there is a factual basis in the pro forma sessions 

which, again, have been used by both bodies of a congress to comply with other constitutional requirements for many years now, 

and was used by both bodies of this Congress on December 23, 

2011 to actually enact legislation. That, it seems to me, would 

make it very nearly impossible for a court to say the president was 

right in interpreting the Senate’s action as being a constitutional 

nullity. 

Mr. DESJARLAIS. Okay, best case scenario. When do you think a 

final decision as to the constitutionality of recess appointments 

would be made? 

Mr. COOPER. In the Supreme Court. 

Mr. DESJARLAIS. Yes. 

Mr. COOPER. I tend to agree with Mr. Devaney. I think that 

would be a 2-year process at least. And it cannot get underway, but 

it will surely get underway as soon as either the NLRB or Mr. 

Cordray and the Financial Protection Bureau begin making decisions and rulings that adversely affect individual companies, individuals in unions and banks and others. 

When that starts happening, I am sure that litigation will proceed. And I think there is some litigation even now proceeding. 

Mr. DESJARLAIS. Okay, thank you. That is all I have. 

I yield back. 

Chairman KLINE. The gentleman yields back. 

Mr. Grijalva? 

Mr. GRIJALVA. Thank you, Mr. Chairman. I won’t venture into all 

the legal stuff, but—— 

[Laughter.] 

Mr. GRIJALVA [continuing]. Although I am tempted, but I can’t 

even pretend. 

Do your—Mr. Devaney, do your clients—as you mentioned, you 

represent primarily employers. Do they benefit from the National 

Labor Relations Board when it cannot function, it cannot do its 

business with two members only? 

And these three appointments were meant not only to fill the 

board, but also to increase its functional ability to deal with the 

things before it, even the most mundane and routine. So do your 
52 

clients gain, do they have a benefit, by the fact that board cannot 

act? 

Mr. DEVANEY. I don’t think it depends on the facts of the case. 

For example, I actually disagree with Ms. Davis with respect to the 

impact of delay. I mean, there were 100 cases that were appealed 

to the U.S. Court of Appeals out of the some 600 cases that were 

decided by the unlawfully-constituted two-member board. 

Now, for every one of those 100 people they had expenditure for 

lawyers, they had expenditures for their clients. Those were 

unions, those were employees, those were management. As I said 

earlier, I think it is an institutional process. It is true that unfair 

labor practice charges are—the number of charges filed against employers are much higher than the number of charges that would be 

filed by unions. 

So to that extent, I guess you could make an argument that, 

well, if the board can’t function it delays the decision-making on 

those kind of matters. I raise another concern. 

Mr. GRIJALVA. Well, the testimony, you know, as far as I can see, 

employers—not to mention the workers and their families—I don’t 

think they benefit from a dysfunctional board that cannot make decisions. That, to me, is—even routine, mundane decisions can’t be 

made during this period. 

And that, to me, seems to be really bad public policy, in the 

sense that people are suspended without a decision. And no doubt 

in my mind there is a benefit derived from some employers of no 

decision being made and allowing this process to just be strangled 

with no decision. 

Ms. Davis, can you give me a couple of examples of those mundane, non-controversial decisions that the board might be expected 

to decide at any time? And these basic decisions that I have been 

asking about, what happens if they are not made or cannot be 

made? 

Ms. DAVIS. Yes, I think that is a good question. I would divide 

the universe of what is out there into several categories. There are 

the little decisions that you mentioned that matter to one employer 

and one union or one group of workers. And I just went through 

one in New York City with the musicians on Broadway who were 

campaigning against recorded music. They wanted to keep pit 

music live. 

And they decided they weren’t going to shut down Broadway like 

they did a couple years ago. They were going to engage in a campaign to let people know what it meant to have live music on 

Broadway. The employers came out, the Broadway League, and 

said we are going to sue you if you do that. 

So we filed a charge with the board. It went up, it got resolved. 

Broadway stayed live, we were happy. They probably weren’t as 

happy, but it is a little case. Doesn’t matter to anybody but those 

two parties. 

Then there are the significant decisions that are precedent-setting that are out there. The definition of who is an employee and 

who is an independent contractor, that is going to matter for a lot 

of different people. That is pending. Whether graduate students, 

graduate teaching assistants, are able to organize. 
53 

My son is at NYU right now. He doesn’t, quite frankly, care. But 

a lot of people care about whether or not they can form a union. 

Whether or not nurses, simple charge nurses or supervisors—there 

are a lot of big-ticket items out there that, quite frankly, I think 

those of us who advise clients for a living, all of us, would like the 

certainty of a discontinuation. 

I don’t think it serves anybody’s interest not to have certainty. 

And finally, as the ranking member mentioned, the impact on this 

economy of a essential gutting the ability to go to the labor board 

is going to hurt unions. When it hurts unions, it is going to hurt 

workers. When it hurts workers they don’t have money, they can’t 

buy things. 

As I think the former secretary of labor said it is a righteous 

cycle. When you have good jobs you have a paycheck, you can buy 

things, there are more jobs. If the board becomes dysfunctional, if 

the labor movement is hurt and the workers are hurt, ultimately 

the middle class in this country is going to hurt. And that is going 

to hurt all of us. 

Mr. GRIJALVA. Thank you. 

And my last question, if I may, Mr. Cooper. As an expert—and 

the motivation behind those appointments, I think, has to be 

looked at, as well—as a constitutional expert, can you tell the 

members of this committee what we need to do to address the gridlock of executive appointments that now it seems that the Senate 

holds up even the most mundane appointments? 

These are critical to employers and employees in the country, the 

one we are talking about today. But how do you address that gridlock, given the fact that nothing seems to move if it is recommended by this president. 

Chairman KLINE. I am sorry, but the gentleman’s time has expired. 

Mr. Gowdy? 

Mr. GOWDY. Thank you, Mr. Chairman. And I want to thank the 

ranking member for mentioning South Carolina, although I am not 

positive it was in a complimentary way. We appreciate the acknowledgment. 

Some of us like the law because it provides order and consistency 

and predictability, which is why we have this concept called stare 

decisis, which we tend to like when we like the underlying ruling, 

we tend to ignore when we don’t. So let me ask you this, Ms. Davis. 

Up until a month or so ago, the administration’s position was the 

recess had to last longer than 3 days for it to be a recess. 

The president’s own deputy solicitor general argued that in front 

of the Supreme Court. What is the new definition of ‘‘recess’’? 

Ms. DAVIS. I think if you read the very lengthy opinion of the Office of Legal Counsel you will see that dating back—essentially the 

founding fathers and dating back to earlier decisions—that there 

should be a functional analysis of what constitutes a recess. Is the 

Senate actually there to advise and consent. And here—— 

Mr. GOWDY. Well—— 

Ms. DAVIS. I am sorry. If I just say here, under their own order 

and under the reality, they were not there. 
54 

Mr. GOWDY. So the executive branch determines when there is 

a recess? Because whatever we decide to today is going to be applicable whether it is a Republican president or a Democrat president. 

Ms. DAVIS. Ultimately, and happily, the courts are going to decide. And I am very glad that I am on this side of the aisle and 

not subject to the constitutional cross-examination by Congressman 

Andrews. Because I think he makes the right point. Ultimately, we 

are not going to decide that in this room. A court is going to decide 

it. 

But I think what we need to look at is what is the import of the 

paralysis that could be caused by a congressional squabble that essentially would render this agency headless. 

Mr. GOWDY. Well, do you agree Congress can defund this agency? 

Ms. DAVIS. Do I agree Congress has—— 

Mr. GOWDY. Sure. 

Ms. DAVIS [continuing]. Has attempted to manipulate the decisions of the agency—— 

Mr. GOWDY. It is a simple—— 

Ms. DAVIS [continuing]. Through the appropriations process. 

Mr. GOWDY. It is actually a simple question. Can Congress 

defund the NLRB? 

Ms. DAVIS. I know Congress has attempted to defund the NLRB. 

Whether or not it can properly defund it is, I think, the question 

you should be looking at. 

Mr. GOWDY. But you don’t think we have the authority to disband the NLRB and move the jurisdiction to another agency. 

Ms. DAVIS. I certainly think that you could try to change the law. 

Mr. GOWDY. Right, that is what I am saying 

Ms. DAVIS. But as long as the law—but that is a legislative matter. As long as that law applies—— 

Mr. GOWDY. Yes, but if Congress has the power to defund it, but 

Congress doesn’t have the power to define whether they are in recess and when they are not. 

Ms. DAVIS. You do not ultimately have the power to decide a recess. A court is going to decide what is a recess. The question 

is—— 

Mr. GOWDY. So the judicial branch—— 

Ms. DAVIS [continuing]. What is going on in the interim. And I 

think, quite frankly—— 

Mr. GOWDY. The judicial branch trumps the Senate and the 

House in defining when there is a recess. 

Ms. DAVIS. With all due respect to all of our opinions—yours, and 

those of ours at this table—the constitutional analysis right now is 

turning a bit on whose ox is being gored. I think that we have to 

look at this soberly. The president made a judgment, it was a read 

judgment. The opinion of his Office of Legal Counsel was sound. 

That is the same opinion that the head of that office under 

George W. Bush gave. I think the question now is, now that that 

is done what is going to be the impact of this. I think that is the 

issue that everyone here should be focused on. 

Mr. GOWDY. Well, let me ask you about the practical impact. 

When did the president submit the names to the Senate, the NLRB 

putative appointees? What is the date? 

Ms. DAVIS. I believe in December, perhaps December 15. 
55 

Mr. GOWDY. Do you know whether the proper paperwork was 

turned in contemporaneous with those—— 

Ms. DAVIS. I have no idea. My understanding is, though, that 

those people have been vetted, just fully vetted. They have been 

looked at by the FBI. It is exactly what happened when President 

Bush recessed recess-appointed two people, when President Clinton 

recessed-appointed John Higgins and Johns Truesdale. There was 

no process of review here. 

Mr. GOWDY. And, well, let me go back to my—what is the new 

definition of ‘‘recessed’’? Can the president do it over a lunch 

break? 

Ms. DAVIS. No, I think—— 

Mr. GOWDY. And if not, why not? 

Ms. DAVIS. I think the question is, is the Senate actually available to advise and consent. 

Mr. GOWDY. Well—— 

Ms. DAVIS. Now, if the Senate—I am going to just try to answer 

your question. On a lunch break? I think that is a different question, when they are conceitedly, by Senate order, not able to do any 

business as opposed to coming back after a 30-minute lunch break. 

The Senate could call up these nominees now. They could—— 

Mr. GOWDY. Which leads to my final point—— 

Ms. DAVIS [continuing]. Call up these nominees now. 

Mr. GOWDY [continuing]. Because I am almost out of time. Who 

controls the calendar of the Senate? 

Ms. DAVIS. I am sorry? 

Mr. GOWDY. Who controls the calendar? Because the Democrats 

control the calendar in the Senate. So what we have now are three 

names being sent to the Senate. Reid has yet to schedule a hearing 

on any of them. So if you want to game the system you just put 

your names up, you have a member of your own party never schedule a hearing, don’t do background checks, wait until the Senate 

decides to take a nap, and then make the recess appointments. 

Ms. DAVIS. I understand your frustration with the system. But 

I have to tell you, those of who don’t live in this town are even 

more frustrated to see that the kind of games that are going on is 

able to essentially paralyze an agency. I understand your frustration. 

Mr. GOWDY. Well, you know—— 

Chairman KLINE. The gentleman’s time has expired. 

Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. And Mr. Chairman, I 

thank you for calling the hearing. Obviously we have a problem 

here, but what I have not heard from the witnesses is what the 

House of Representatives can do about it. Isn’t it true, I will ask 

any of the witnesses, that the House cannot confirm these appointments? 

The House can’t confirm these appointments. That is right. 

Mr. DEVANEY. [Off mike.] The Senate—advise and consent. 

Mr. SCOTT. Okay. And the House can’t rule. We have heard a lot 

constitutionality of these issues. There is nothing the House can do 

that can resolve the constitutional issue before us about the recess 

appointments. Is that right? 
56 

Mr. DEVANEY. Well, I think that is right. But on the other hand, 

I think it is certainly legitimate for the Congress to be concerned 

about the functioning and the proper functioning of the National 

Labor Relations Board. 

Mr. SCOTT. Okay, we are concerned. But there is nothing that we 

can do about resolving—— 

Mr. COOPER. One thing, if I could just add. The president’s view 

of the pro forma sessions—and the OLC’s view now, apparently 

adopted by the president—those sessions are a constitutional nullity would apply no less to this body, which engages in pro forma 

sessions itself. And, in fact, enacted the two-month payroll tax cut 

extension itself by a pro forma session just as the Senate did. 

And that view would extend no less to this body, I should think, 

than it does to the Senate. 

Mr. SCOTT. Well, the issue of the NLRB functioning is not going 

to be resolved by this body. 

Mr. DEVANEY. Well, Congressman, let me say this, just throw 

this out as an idea. When I served as a commissioner of the ITC, 

the Congress, in that statute, made the agency bipartisan. If one 

of the concerns is the partisan rancor at the five-member NLRB— 

which, by the way, in the statute it doesn’t say that there should 

be three of the president’s supporters and two others—since 1935, 

many of the statutes that Congress has enacted make a different 

evaluation. 

I mean, maybe that is something that might be considered. 

Mr. SCOTT. Well, we are not going to resolve the constitutionality. 

Mr. Marculewicz, you indicated that the problem with the lack 

of a quorum is on rulings. Can the NLRA work, to some extent, 

without rulings? 

Mr. MARCULEWICZ. The National Labor Relations Board, at the 

regional office level, operates on a daily basis. Charges are filed on 

a regular basis, election petitions, representation case petitions are 

filed on a daily basis. They conduct investigations, they issue complaints, they prosecute those complaints, they conduct hearings. 

Administrative law judges decide cases. And throughout that entire process, they work very hard to resolve a lot of those disputes. 

And so a very large number of cases are resolved at the regional 

office level long before they get to the NLRB, whether it is a twomember board panel or a five-member board panel that has a situation. Where we are, we are looking at potential constitutional 

issues with that, the three members’ appointments. 

And the issue with the regional office, when the regional office 

works a case, they work that case under the authority and under 

the precedent established by the National Labor Relations Board. 

So, for example, when you had the two-member panel the regional 

offices were investigating and prosecuting cases consistent with the 

law that existed at the time. 

And cases get resolved consistent with that law. The problem 

here is that when you have a five-member panel that issues a decision and, as Ms. Davis indicated, there are number of very significant issues pending before the National Labor Relations Board that 

apply to both union and non-union workplaces—look at the 

Facebook or social media issues, look at the e-mail access issues. 
57 

Mr. SCOTT. But you can’t—I think the point we are trying to 

make, and I just have a short period of time, is that there can be 

some function of the committee. 

Mr. DEVANEY. Congressman, could I follow up on that? There is 

another uncertainty concern, though, that is raised. If, for example, 

these appointments are found to be unlawful, if there are any delegations done by this board to the general counsel, the regional officers, or others there is another constitutional problem. 

And I will just point out, in my testimony—— 

Mr. SCOTT. Well, we know the constitutional problems. 

Mr. DEVANEY. Well, I—— 

Mr. SCOTT. My question—and I just have a short period of time 

left—I just want to point out that isn’t it true that every president 

since President Reagan has made recess appointments to this 

board? 

Ms. Davis? 

Ms. DAVIS. That is absolutely correct. And with respect to your 

question, just to clarify, while certain things can be investigated at 

the region, ultimately, if you have an employer who does not want 

to bargain with the union, who does not want to reinstate an employee who was unlawfully fired, and the board is not functioning, 

we are out of luck. 

Mr. SCOTT. Thank you. And just for the record, Mr. Chairman, 

President Reagan made 240 recess appointments, President George 

H.W. Bush 75, President Clinton 139, President George W. Bush 

171. And thus far, President Obama 32. 

Ms. DAVIS. If I may just add, Teddy Roosevelt made 160 recess 

appointment in the blink of an eye. So I think we are standing on 

firm ground here. 

Mr. COOPER. Perhaps I could just add a—— 

Chairman KLINE. The gentleman’s time, I am sorry, has expired. 

Mr. Wilson? 

Mr. WILSON. Thank you, Mr. Chairman. And thank you very 

much for holding this hearing. We in South Carolina have found 

out the hard way how significant NLRB is. 

We were all very proud, in our state—and I was there for the 

groundbreaking for the new Boeing facility, a million square foot 

facility—they proceeded to hire 1,000 employees. We have suppliers 

who are locating in South Carolina, ultimately in the district I represent—Zeus of Orangeburg, Prysmian of Lexington, Spirax of 

Blythewood. 

We have nearly 10,000 people who were really looking forward 

to producing 787 jetliners. And then out of the blue the NLRB intervened and announced that Boeing could not produce 787 jetliners. Fortunately, with the leadership of persons such as Congressman Gowdy and Congressman Tim Scott from Charleston, we 

were able to push back. 

But the NLRB, out of control, is truly destroying jobs and threatening families in my state. And so that is why we are concerned. 

And so, Mr. Chairman, your leadership of bringing this issue is just 

crucially important. 

Mr. Marculewicz, I wanted to ask you several questions. The 

NLRB regional staff investigates violations of the National Labor 

Relations Act and runs union representation elections. What prece-
58 

dent does NLRB regional staff follow, and how will this infect employers and employees? 

Mr. MARCULEWICZ. Thank you. I think the National Labor Relations Board regional office staff, and I was one of them, follows the 

precedent as set by the National Labor Relations Board, the existing case law. When a new case comes out or is issued by the National Labor Relations Board, then the Office of General Counsel 

typically issues a memo and gives some directive, particularly if it 

is a significant case. 

So, for example, if you had a situation where there was a new 

decision on social media policies there might be some direction that 

would be given by the general counsel’s office that then would be 

investigated by the regional office. 

If you have a situation where, as we could potentially have with 

this five-member panel, decisions that are made on major substantive areas of law have potential constitutional problems associated with them—meaning that they could all be overturned—the 

regional office is still going to pursue and prosecute and investigate 

cases consistent with that law. 

So what that is going to mean is, it is going to mean that, first 

of all, employers, unions and workers are going to be held accountable to that new law, number one. And those who may not even 

be subject to cases are going to conform their behavior to that new 

law. 

Which means, for example, if you use a social media—a company 

comes out with a new policy that defines social media and how social media can be regulated in the workplace or outside of the 

workplace—the National Labor Relations Board issues a decision 

modifying what the parameters of that could be. 

Then companies are going to be calling. And and this is what I 

do on a regular basis. I get clients, and we will just use a hypothetical example of Dan the pool guy who runs a small business 

and says, ‘‘I have, you know, 100 employees and social media is a 

major means of communications. How do I operate?’’ 

Well, I say, ‘‘Well, Dan, unfortunately this is the situation. They 

have changed the law, there are constitutional ramifications. If the 

National Labor Relations Board, there were to be a complaint or 

a charge filed against you by the by some party with the NLRB, 

they are going to expect you to be held accountable to this type of 

policy, even though there are constitutional problems with it.’’ 

And he says, ‘‘Well, what am I supposed to do? How am I supposed to deal with this? I am not going to fight these guys. I don’t 

have the money, I don’t have the resources, I don’t have the time. 

I just want to run my business.’’ So the reality is that the implications and the ramifications, when you take it from the—you know, 

they are going to implement these policies and these new laws. 

And when you have to try to put that toothpaste back in the 

tube, if the U.S. Supreme Court decides, as Mr. Cooper has indicated may happen, that there is a constitutional question related 

to the appointment of these individuals, these boardmembers, that 

is turning things over significantly. 

It is a lot different when you have a two-member panel that is 

just making noncontroversial sort of agreed-upon decisions. Here, 

you are going to be having a situation where they are going to be 
59 

changing major substantive areas of law that are going to have 

major impacts on everybody. 

Mr. WILSON. Well, as we have seen in our state, an intrusive government, sadly, is going to convince companies to locate overseas. 

And that is a great concern I have, and so I appreciate your efforts 

of raising these issues to the American people. 

And again, Mr. Chairman, thank you. This is real-world information the American people need to know. I yield the balance of my 

time. 

Chairman KLINE. I thank the gentleman. 

Mr. Kucinich? 

Mr. KUCINICH. Thank you very much, Mr. Chairman. I ask unanimous consent to insert into the record an article from the New 

York Times dated January 22nd, 2012, ‘‘More Lockouts As Companies Battle Unions.’’ 

[The information follows:] 

[From the New York Times, January 22, 2012] 

More Lockouts as Companies Battle Unions 

By STEVEN GREENHOUSE

America’s unionized workers, buffeted by layoffs and stagnating wages, face another phenomenon that is increasingly throwing them on the defensive: lockouts. 

From the Cooper Tire factory in Findlay, Ohio, to a country club in Southern California and sugar beet processing plants in North Dakota, employers are turning to 

lockouts to press their unionized workers to grant concessions after contract negotiations deadlock. Even the New York City Opera locked out its orchestra and singers 

for more than a week before settling the dispute last Wednesday. 

Many Americans know about the highly publicized lockouts in professional 

sports—like last year’s 130-day lockout by the National Football League and the 

161-day lockout by the National Basketball Association—but lockouts, once a rarity, 

have been used in less visible industries as well. 

‘‘This is a sign of increased employer militancy,’’ said Gary Chaison, a professor 

of industrial relations at Clark University. ‘‘Lockouts were once so rare they were 

almost unheard of. Now, not only are employers increasingly on the offensive and 

trying to call the shots in bargaining, but they’re backing that up with action—in 

the form of lockouts.’’ 

The number of strikes has declined to just one-sixth the annual level of two decades ago. That is largely because labor unions’ ranks have declined and because 

many workers worry that if they strike they will lose pay and might also lose their 

jobs to permanent replacement workers. 

Lockouts, on the other hand, have grown to represent a record percentage of the 

nation’s work stoppages, according to Bloomberg BNA, a Bloomberg subsidiary that 

provides information to lawyers and labor relations experts. Last year, at least 17 

employers imposed lockouts, telling their workers not to show up until they were 

willing to accept management’s contract offer. 

Perhaps nowhere is the battle more pitched than at American Crystal Sugar, the 

nation’s largest sugar beet processor. 

Last summer, contract negotiations bogged down, with the company insisting that 

its workers agree to higher payments for health coverage, more outsourcing and 

many other concessions. Shortly after the 1,300 unionized workers—spread among 

five plants in North Dakota, Minnesota and Iowa—voted overwhelmingly to reject 

those demands, the company locked them out and hired replacement workers. 

That was on Aug. 1, more than five months ago, and since then the workers and 

their families have been scrounging to make ends meet. Some face foreclosure and 

utility disconnection notices. 

American Crystal has hired more than 900 replacement workers to keep its plants 

running. Federal law allows employers to hire such workers during a lockout, although they cannot permanently replace regular employees. Employers can pay the 

replacements lower wages, although as is the case with American Crystal, the companies sometimes need to offer higher wages and help pay for housing to attract 

replacements. 
60 

With many private-sector labor unions growing smaller and weaker, and with 

public-sector unions under attack in numerous states, some employers think the 

time is ideal to use lockouts, a forceful approach they were once reluctant to use. 

Many employers, though, say they have little choice. 

Robert Batterman, a labor lawyer who represents employers, said whether it was 

the N.F.L. or Sotheby’s, which locked out 43 art handlers in Manhattan last July, 

‘‘the pendulum has swung too far toward the employees, and the employers are looking in these tight economic times to get givebacks.’’ 

‘‘Employers,’’ he continued, ‘‘are using lockouts because unions are reluctant to do 

what the employers consider reasonable in terms of compromising. Employers are 

looking to reset their collective bargaining relations.’’ 

After being out of work since Aug. 1, Paul Woinarowicz, a warehouse foreman employed at American Crystal Sugar for 34 years, sees another rationale for lockouts. 

‘‘It’s just another way of trying to break the union,’’ said Mr. Woinarowicz, a member of the bakery and confectionery workers union. ‘‘People here in the Red River 

Valley are really mad at American Crystal. It was just like a knife stuck in your 

heart.’’ 

With American Crystal earning record profits before the lockout, the workers 

strongly opposed its push for concessions. Mr. Woinarowicz noted that the company’s most recent quarterly report showed a sharp decline in production and profits—a development the workers said showed the lockout was taking a toll. American 

Crystal said the drop was due to a smaller sugar beet crop and higher operating 

costs. 

American Crystal accuses union negotiators of being inflexible and denies that it 

is seeking to break the union. For many employers, lockouts have proved highly successful. Last July 17, Armstrong World Industries locked out 260 workers at its ceiling tile plant in Marietta, Pa., after they rejected the company’s offer as stingy on 

pensions and health coverage. 

After being locked out for five months, the workers accepted a contract only 

slightly different from the one they had originally voted down. Union officials said 

the workers knew Armstrong had the upper hand. 

There have been several recent lockouts at hospitals, often after nurses engaged 

in a one-day walkout. To hire replacement nurses from a staffing company, hospitals 

often have to commit to hiring them for at least a week, so a one-day nurses’ strike 

is often followed by a four-day lockout. But at some health care facilities, like West 

River nursing home in Milford, Conn., where management locked out 100 workers 

on Dec. 13, companies see lockouts as a way to wrest concessions and set an example for workers at their other facilities. 

DeMaurice Smith, executive director of the National Football League Players Association, said the football, hockey and basketball leagues ordered lockouts in recent 

years for a clear reason: to gain leverage in negotiations. 

‘‘The lockout is designed to put you at a distinct disadvantage,’’ he said, saying 

it places huge pressures on players who typically have short professional careers. 

The National Hockey League’s lockout of 2004-5 canceled an entire season. 

Mr. Smith said, ‘‘A lot of players have careers of two or three years, and you 

might get a player who asks, ‘At what point is this fight worth one-third of my career?’ ’’ 

For Jeannie Madsen, a lab technician at American Crystal, the lockout has meant 

strains for her and her fiance, also a worker there. With her former husband also 

locked out and suspending child support payments, she said she could not afford 

new school clothes and shoes for her children and had to stop paying her daughter’s 

orthodontist bills. She said Wells Fargo would soon foreclose on her home. 

‘‘What’s most upsetting is that it’s affecting the lives of many innocent children,’’ 

she said. 

The sides are holding occasional negotiations but remain deadlocked. 

Ms. Madsen said the company was continually putting up barriers to a settlement, essentially pressing the workers to surrender. Company officials did not return phone messages, but Brian Ingulsrud, the company’s vice president for administration, wrote in an editorial for a Fargo newspaper that ‘‘American Crystal Sugar 

remains committed to good-faith negotiations.’’ 

Chairman KLINE. Without objection. 

Mr. KUCINICH. Thank you. I have had the opportunity to visit 

two locked-out groups of workers in the last few days. One in Findlay, Ohio at Cooper Tire, where the United Steelworkers have been 

locked out since around Thanksgiving. And another one in San-
61 

dusky, Ohio at Sabanci, where members of the IAM have been 

locked out since January of 2011. 

Now, Ms. Davis, as you testified, lockouts have been more frequent. Are unions striking more? 

Ms. DAVIS. Unions are actually striking much, much less. They 

are sitting down at the table now. They understand the reality that 

this country is facing, and they are sitting down at the table, and 

I have done it countless times, with employers trying to save the 

employer’s business in order to save their jobs. 

We just went through it at the New York City Opera. The car 

companies are a terrific example, where the union sat down with 

the car companies and they reached an agreement. And as a result 

of that agreement, the car companies are back in business. We 

have 160,000 jobs that have come back to this country. 

Mr. KUCINICH. But let us—— 

Ms. DAVIS. That is what the unions are trying to do. 

Mr. KUCINICH. But let us look at what is happening in Findlay 

and Sandusky, and also in Minnesota, where American Crystal 

Sugar has locked out its employees. In every case, they are looking 

for concessions beyond which workers can’t sustain. In every case, 

they are using lockouts as a bludgeon to drive down workers benefits and wages and to literally try to break unions. Is that not true? 

Ms. DAVIS. I think that is exactly right. And quite frankly, it is 

one thing when it happens in football and hockey and basketball. 

But it is another thing when it really happens to the 99 percent 

who, as a result of that lockout, cannot pay their medical bills. 

Mr. KUCINICH. So, okay. And I have read not only not pay medical bills. Not even be able to have the money to buy their kids 

shoes. So here is the question. What is the penalty for lockouts? Is 

there anything punitive that is in the law right now that would 

really come down very hard on an employer who locks out his employees who are just trying to exercise their rights to collective bargaining? 

Ms. DAVIS. There are legal and illegal lockouts. In a legal lockout, there is nothing that anybody can do. In an illegal lockout, 

which is often the case—we have seen that a lot—the only remedy 

is to ultimately file a charge, and go to the NLRB. And that is one 

of the reasons that the paralysis in the NLRB will be hurting workers even more. 

Mr. KUCINICH. So with the paralysis in the NLRB, would it be 

helpful if there was additional legislation to protect workers who 

are locked out? And if, in fact, it was found to be an unfair labor 

practice, for punitive measures be taken against the employer. 

Would that be helpful, if there were additional laws? 

Ms. DAVIS. We welcome any worker-friendly legislation because, 

ultimately, we think it will help this country. 

Mr. KUCINICH. Mr. Chairman, members of the committee, I just 

want to suggest that, you know, yes, there are union disputes with 

management. But at times, there is egregious violations of workers 

rights; the right to organize, the right to collective bargaining, the 

right to strike. 

And we need to protect the workers rights. And what I am going 

to be proposing—and I would ask members to consider this—is that 

any company that is found to have illegally locked out their em-
62 

ployees that they be debarred from any federal contracts whatsoever. I think this is the only way that we can have an effective stop 

against this growing practice of trying to lick workers out. 

We are in a whole new area. And I want to ask one more question if I have time. Is there a constitutional issue here? Is the 

worker’s right to association here actually under attack? 

Ms. DAVIS. There is no question that it is under attack. It is protected by the statute, and it is under attack by every employer that 

wants to keep its workers down and keep a union out. I have to 

just mention one thing about the Boeing issue that was raised by 

the congressman earlier. 

Boeing, ultimately, at the end of the day, is a success story. What 

happened is, a union sat down with a company, they worked out 

an arrangement, they saved jobs in South Carolina, they saved jobs 

in Washington. That is how the system is supposed to work. 

Mr. KUCINICH. So the system can work if the law is followed, but 

if corporations go ahead and try to smash a union using lockouts 

as a device they are breaking down the system, violating the constitutional rights of workers. And there ought to be recourse for 

workers against these corporations. 

That is my point. What is the punishment? You throw a whole 

group of people, 1,000 people, out of work you are condemning their 

families to poverty. We have to have some recourse if it is an illegal action. And often it is, and that is why I think we cannot be 

silent or neutral on this question. 

When workers are locked out, they have to have recourse of their 

rights. If the NLRB isn’t functioning, workers are not able to gain 

their rights. And the balance has already been tilted viciously 

against workers. And I think it is time that we reset the balance 

in their favor. 

Thank you very much. I yield back. 

Chairman KLINE. The gentleman’s time has expired. 

Mr. ROKITA. Thank you, Mr. Chairman. I yield to a statesman, 

Dr. Phil Roe, for the purpose of a quick follow-up to his questioning. 

Mr. ROE. Just a couple of quick follow ups. I, again, have looked 

at every NLRB appointee since 1936. And the first one that was 

appointed by recess was President Carter. And after that, President Reagan, but not during a recess. It was during a recess. It 

was during a recess where the Senate was not in pro forma session. 

So this is the first time I could find, through research, since 

1936, that that happened. And I think it is a very serious constitutional issue between the balance of powers. And I agree with you, 

Ms. Davis. We need a functioning NLRB, no question about it. 

And this will be a disaster if these folks layer a rule by the Supreme Court 2 years from now that everything they ruled on 

doesn’t stand. You have got to go back to 2012, and then go 

through all of that again. 

Mr. Cooper, am I correct, or am in wrong in that? 

Mr. COOPER. Congressman, I believe you are correct. I would 

only add to your point that it is true that presidents throughout 

history have exercised their power under the recess appointment 

clause. That is an important power. It was contemplated by the 
63 

framers as a necessary adjunct to the joint appointment authority 

between the president and the Senate. 

But no president until January 4th had ever exercised the recess 

appointment power on the day after the Senate met in session and 

2 days before it met in session again. 

Chairman KLINE. Congressman? 

Mr. COOPER. That has not happened. 

Mr. ROE. I will yield back. 

Mr. COOPER. And that is what is unique, and that is what extends now the concept of this power to a place where it is never 

gone and where it has uniformly been said not to exist. 

Mr. ROE. Okay, I yield back to Mr. Rokita. 

Mr. ROKITA. Thank you, Dr. Roe. And thank you, Mr. Cooper, for 

that clarification. 

Real quickly, Mr. Devaney, do you have something to add to 

that? 

Mr. DEVANEY. Well, I just wanted to say that, you know, I had 

the distinction of being recess appointed by President Reagan, and 

then I was confirmed by the Senate. I mean, that is the way the 

system is supposed to work. It was an inter-session. 

Mr. ROKITA. And there was not confirmation here, bottom line. 

Mr. DEVANEY. Exactly. And then I was confirmed. 

Mr. ROKITA. Thank you. 

Mr. Chairman, listening to the discussion here I am very concerned that some people on this committee don’t feel the need to 

have this constitutional discussion, don’t feel the need to maintain 

this Constitution. I simply, for the record, want to remind everyone 

of the oath that we took. 

‘‘I do solemnly swear that I will support and defend the Constitute of the United States against all enemies, foreign and domestic. That I will bear true faith and allegiance to the same. That I 

take this obligation freely, without any mental reservation or purpose of evasion.’’ 

It doesn’t talk about Mr. Obama’s, President Obama’s—— 

Mr. MILLER. The gentleman—will the gentleman yield? 

Mr. ROKITA. No. One second. 

Mr. MILLER. To apologize? 

Mr. ROKITA. Okay, never—— 

Mr. MILLER. Trying to figure out what your point is. 

Mr. ROKITA. The point is, we can—— 

Mr. MILLER. You are challenging other—— 

Mr. ROKITA. This is the most important thing we could be doing. 

Mr. MILLER [continuing]. [Off mike.]. 

Mr. ROKITA. A great way to—— 

Mr. MILLER [continuing]. Resolution—— 

Mr. ROKITA [continuing]. This country is to let the free market 

work. 

Mr. MILLER. And in the political this would go to the Supreme 

Court. 

Mr. ROKITA. So to describe this hearing as a waste of time—— 

Mr. MILLER. It is a waste of time. 

Mr. ROKITA [CONTINUING]. AS I HAVE HEARD SEVERAL TIMES—— 

Mr. MILLER. You have—no, you have no impact—— 
64 

Mr. ROKITA [continuing]. Is, we do have an impact. As the witness has stated, it is demeaning to the process, it is demeaning to 

the Constitution, it is demeaning to the oath that we took. 

Mr. MILLER. No, it is not. 

Mr. ROKITA. And Chairman—— 

Ms. DAVIS. Actually, not all the witnesses stated that, sir. 

Mr. MILLER. That is how—— 

Mr. ROKITA. And, Chairman, because we don’t have order 

here—— 

Chairman KLINE. The gentlemen, plural, will suspend. 

Mr. MILLER. And it will go to the Supreme Court, and they will 

make a determination. 

Mr. ROKITA. Mr. Chairman, because—— 

Chairman KLINE. The gentleman’s not recognized. 

Mr. ROKITA. But this committee—— 

Chairman KLINE. The gentleman has a minute and 7 seconds 

left. 

Mr. ROKITA. Mr. Chairman, I ask for some additional time, since 

we didn’t have regular order. 

Chairman KLINE. The gentleman has 59 seconds left. 

Mr. ROKITA. Ms. Davis, we talked about the rule of the jungle. 

And it reminds me of what, I believe, John Adams said. We are a 

country of laws, not a country of men. From your testimony, I want 

to clarify something. Are you saying that the NLRA, or the NLRB 

for that matter, trumps the Constitution? 

Ms. DAVIS. Obviously not. What I was saying is, that as long as 

there is an NLRA and also there is an NLRB that it is incumbent 

upon everyone to allow that agency to function. And constitutional 

niceties will be decided later, so—— 

Mr. ROKITA. Constitutional, I see. Let me—— 

Ms. DAVIS. I am sorry. I was just in the middle of my sentence. 

Mr. ROKITA. Constitutional niceties. I know you said that this is 

the longest time that you have studied the Constitution in awhile. 

And I appreciate that, but this is important. This is more than a 

constitutional nicety. I want you to assume something. 

Assume that what was done with these ‘‘recess appointments’’ 

was found by a court, or whoever the decider is, to be unconstitutional. Do you agree that the Constitution holds supreme? 

Ms. DAVIS. Well, first of all, of course the Constitution holds supreme. And I think the issue that we have been debating is who 

decides. Does this chamber decide or does a court decide? 

Mr. ROKITA. If—— 

Ms. DAVIS. But I think the question—I am sorry, you just have 

to let me answer your question. 

Chairman KLINE. The gentleman’s time has expired. 

Mr. ROKITA. I was trying to save your time. 

Chairman KLINE. Ms. Woolsey? 

Ms. WOOLSEY. Thank you, Mr. Chairman. 

Ms. Davis, you may complete your thought. 

Ms. DAVIS. Thank you very much. What I was saying is, the 

question of what is the balance of horribles here, in the event we 

do not know how a court is going to decide? On the one hand, if 

a court were ultimately to rule that the recess appointments were 

unconstitutional—which I think, for the reasons outlined in the 
65 

OLT report, that is unlikely, but let us assume that that is a possibility—we would be exactly in the situation we were after New 

Process Steel. 

You would have scores of parties who are happy with the decision, and they will go away. And you will have some cases that will 

have to be revisited. And that was done in a couple of months. On 

the other hand, if the agency is essentially rendered impotent now, 

which is what is being urged on the other side of the aisle, the consequences for unions, for the collective bargaining processes, and 

for workers are enormous. 

And I think that is the issue of what is at stake here. 

Ms. WOOLSEY. Thank you very much. Which leads me right in 

to asking the question what is more uncertain? Being paralyzed by 

process, or moving forward to make sure that we can make decisions and decisions are made related to, in particular, the most difficult disputes that are going on. 

Okay, so I am going to ask each one of you what would you have 

done to unlock this process? 

Mr. DEVANEY. You want to go this way, Congresswoman? 

Ms. WOOLSEY. No, I will start down there. We get you either 

way. 

Mr. COOPER. I would have advised the president to remain carefully and strictly within the bounds of his constitutional authority. 

And that at least in this instance, would have meant that the Senate had indeed found a way to prevent him from making recess appointments and—— 

Ms. WOOLSEY. Okay, but what would you have done if you were 

president, Mr. Devaney? 

Mr. DEVANEY. I would not have made these recess appointments, 

and here is why. When I served on the board in 1993 and 1994, 

we went down to two members. At that point, the solicitor of the 

NLRB gave advice to us that said, ‘‘You know, you really oughtn’t 

to decide cases with only two members ’cause the statute says a 

quorum is three.’’ 

Now, you know, years later the board made a different decision 

and they lost in New Process Steel. I think because of the institutional importance of fair decision-making being looked at by the 

parties that this was a very bad idea and a very bad precedent by 

the president. 

Ms. WOOLSEY. What would you have done, Ms. Davis? 

Ms. DAVIS. I would actually also have advised the president to 

remain strictly within the constitutional authority. But we would 

have reached a different conclusion. And after reaching that conclusion, which is laid out in the OLC opinion, I would have lauded 

him for looking at the real world consequences of, on the one hand, 

the Senate gaveling in and out for a couple seconds, and on the 

other hand the fact that a statute and an agency would be dysfunctional in the years that a marathon litigation was occurring. 

Ms. WOOLSEY. Okay. Mr. Marculewicz? 

Mr. MARCULEWICZ. Well, thank you for the opportunity to put 

myself in this position. I think—— 

Ms. WOOLSEY. You are welcome. 

Mr. MARCULEWICZ [continuing]. By virtue of the example that 

has already been set, there are two confirmed members of the Na-
66 

tional Labor Relations Board, Chairman Pearce and Member 

Hayes. They were confirmed by the Senate. There is nothing to 

prevent the Senate and—or prevent me, as president, from nominating candidates to the National Labor Relations Board who could 

be confirmed by the Senate. 

Ms. WOOLSEY. Well, all right. 

I would like to ask Mr. Devaney, what do you consider ‘‘in session?’’ What was accomplished during those seconds that the Senate was in session? 

Mr. DEVANEY. Congresswoman, I am not going to be a defender 

of the Senate’s position, which is—— 

Ms. WOOLSEY. Yes, but you kind of were. You were saying they 

were in session—— 

Mr. DEVANEY. Well, I—the reason that I think the president 

made a mistake in public policy decision is I think that even as the 

Justice Department admits there is no certainty here. 

Ms. WOOLSEY. No. 

Mr. DEVANEY. So it does put a cloud over all the decisions that 

the NLRB is going to make. I mean, in a near-term thing, if I was 

advising the board, I would say that when they decide by panels 

they ought to make sure that the two confirmed members are a 

majority of the three sub-panels—— 

Ms. WOOLSEY. Okay. I am going to let Ms. Davis—— 

Mr. DEVANEY [continuing]. Because that at least might give them 

a shot. 

Ms. WOOLSEY [continuing]. Do the cleanup batter on this panel 

for me. What is worse? Uncertainty, or at least going forward? 

What is worse? 

Paralysis? Via uncertainty, or action? 

Ms. DAVIS. I think, in the broadest sense, what is worse is that 

this country going to to be hurt, the economy is going to be hurt, 

and workers are going to be hurt. If the only agency we have that 

is capable of enforcing the labor laws is rendered incapable of doing 

anything. 

If you look at the economy back in 1955, when we had a third 

of the workers in this country in unions and we had jobs and we 

had purchasing power and we had a middle class, and you look at 

the economy now, where we have less than 8 percent of the workers in unions and we have an economy that is barely sputtering, 

I think it is very clear that at the end of the day the day we have 

to look at this from the ground up and see what is in the best interests of this country. 

And I think that is pretty clear. 

Chairman KLINE. Gentleladies, time has expired. 

Mr. Walberg? 

Mr. WALBERG. Thank you, Mr. Chairman. And I detect I have 

missed some very interesting testimony and questioning while I 

was over dealing with issues related to veterans affairs and contracting and problems that go on there. 

But one of the most beautiful parts of democracy is its messiness. 

Messiness that speaks of freedom and choice and opportunity, and 

disagreement that go on. And frankly, when I see what is going on 

here with the president and his non-recess recess appointments, I 

am willing to accept the messiness of democracy. 
67 

It causes me great concern. And, of course, this is first and most 

important function. Whether it is an education workforce committee or judiciary committee or whatever, to uphold the Constitution. So I appreciate the discussion today. 

Mr. Marculewicz, over the last few months the board has been 

delegating its authority to the general counsel in preparation for a 

loss of quorum. What authority has been delegated? 

Mr. MARCULEWICZ. Actually, it is the board that delegated certain authorities related to issues that could have become impediments to processing representation case elections and unfair labor 

practice charges through to litigation. 

So for example, the board delegated to the chief administrative 

law judge the authority to rule on dipositive motions, such as motions to dismiss, motions for summary judgment and other things 

of that matter. And that would enable an initial ruling to take 

place on that subject. 

If the ruling—if it were denied, then the case could proceed to 

litigate, fully be developed. And then, ultimately, once the board is 

fully constituted, they would then be able to rule both on the motion of the decision by the chief administrative law judge as well 

as the substance of the case. 

And that is really, I think, the way I see that. It was designed 

to keep the process going during this interim period. 

Mr. WALBERG. What functions cannot be delegated? 

Mr. MARCULEWICZ. You know, the ultimate decision-making on 

cases, the ultimate orders. They can’t delegate that to anybody. 

That is their exclusive authority. 

Mr. WALBERG. What is, then, the practical effect of a broken 

board? 

Mr. MARCULEWICZ. The practical effect of a broken board is—I 

wouldn’t call it—I mean, the practical effect of a broken board, as 

you call it, is such that it would still operate. I mean, so much of 

working and what companies deal with and employers and unions 

deal with before the National Labor Relations Board is handled at 

the regional office level. 

It is not handled at the highest level of the agency. They have 

cases they decide, yes. And ultimately, if one feels they need to 

push the issue all the way to get a final board order, yes, that 

could be done. But most of these cases are resolved. 

Most of these cases are settled beforehand. Most companies don’t 

have the wherewithal or the desire. I talk about Dan, Dan the pool 

guy. He doesn’t have the money to fight a case all the way to the 

bitter end, and they don’t want to do that. 

Mr. WALBERG. Thank you. I would like to—— 

Ms. DAVIS. May I just address your question, as well? 

Mr. WALBERG. I would like to yield the remainder of my time to 

Representative Gowdy. 

Mr. GOWDY. I thank the gentleman. 

Mr. Chairman, I would just say this in the remaining time. I 

started by talking about respect for the rule of law. And it really 

shouldn’t matter, with the vagaries or vicissitudes of political cycles, what definitions mean. And I just find it to be dangerous that 

pro forma sessions have constitutional significance when there is a 
68 

Republican in the White House but they don’t when there is a 

Democrat in the White House. 

And recess has one definition when there is a Republican in the 

White House, but a different definition. And I think the chronology 

is important here. On December the 14th is when these names 

were submitted to the United States Senate. And the notion that 

they couldn’t do any work, or this newfound functionality analysis 

when they passed the payroll tax extension, you can’t have it both 

ways. 

They send names on December the 14th, no background check, 

none of the proper paperwork required by the Senate. And then he 

waits a couple of days and he mask these recess appointments because it happens to be a political year. In 2010 it wasn’t a political 

year, but his justice department argued that a recess must be 

longer than 3 days. 

So the only thing different, Mr. Chairman, is the calendar. And 

I had hoped to go through this hearing without making reference 

to Boeing, but someone cited Boeing as an example of the wonder 

of the NLRB. And I will tell you, my perspective is, a lawsuit is 

filed. Once Boeing agrees to send more union work to Washington 

State, the lawsuit is withdrawn. 

In the criminal justice system, you don’t file complaints solely to 

get people to do what you want them to do. You either enforce the 

law—if Boeing made a mistake, don’t withdraw with complaint. 

But don’t use it to send more union work back to Washington 

State. 

I thank the gentleman for yielding his time. 

Chairman KLINE. Thank the gentleman. 

Mr. Hinojosa? 

Mr. HINOJOSA. Thank you. Chairman Kline and Ranking Member Miller, I am deeply concerned that this committee hearing is 

just another assault on American workers and the National Labor 

Relations Board. Instead, it seems to me that we in Congress 

should be doing everything possible to move a jobs agenda forward 

and provide relief to the millions of workers who have lost their 

jobs in the last 6 years. 

My first question is for Susan Davis. Ms. Davis, in your expert 

testimony, does the Constitution give the president clear powers to 

make appointments when the U.S. Senate is in recess? 

Ms. DAVIS. Yes, and I think no one on this panel would actually 

disagree with that. 

Mr. HINOJOSA. When will the definition of when the Senate is in 

recess be available to us? 

Ms. DAVIS. Well, I think that there are challenges that are going 

to be filed. And I agree, actually. I think it was a conservative estimate given that it was 2 years. I would actually say that this case 

winding its way up to the Supreme Court may take between two 

and 3 years. 

Mr. HINOJOSA. Two to 3 years. 

Ms. DAVIS. And if I may just add, the newfound functionality 

analysis which the congressman referred to dates back to President 

Monroe. This is not a new or radical doctrine. 

Mr. HINOJOSA. Ms. Davis, in your testimony you mentioned that 

there are a number of significant cases pending at the board that 
69 

will provide important guidance to the employers, the workers, and 

to unions. Do these cases involve the proper standard for determining whether those individuals or contractors or employees covered by the NLRA? 

And if the board were to lack a three-member quorum, what 

would happen to those pending cases? 

Ms. DAVIS. Those pending cases would sit there for years. 

Mr. HINOJOSA. Would the workers or the employers have any 

other remedies to seek redress? 

Ms. DAVIS. There are no other remedies under our current legal 

system to seek clarity on labor management relations. So the notion of who is an employee, who is an independent contractor would 

not be resolved for years. That is something that is intellectually 

interesting to us. 

But on the ground, for those taxi drivers in New York and others 

who are looking for clarity, it really is determinative of their ability 

to survive and support their families. 

Mr. HINOJOSA. Thank you. 

My next question is to Dennis Devaney. Mr. Devaney, should the 

NLRB be able to impose sanctions against lawyers for filing frivolous motions and for engaging in genuinely frivolous litigation? 

Mr. DEVANEY. Obviously, the federal courts have the Rule 11 

sanction as a possible remedy for that. Currently, the board doesn’t 

have that, although it does have the ability to sanction lawyers 

who have violated the professional ethics rules that have been 

adopted by the board. 

So that seems to me that is something that the Congress would 

be the proper determinant of, not me. 

Mr. HINOJOSA. Mr. Devaney, in looking at some of the materials 

there is a section that talks about approximately 490 cases were 

resolved and were no longer pending at the board, even after New 

Process Steel. That means the line for everyone else who was waiting to have their court was shorter. Isn’t it better to be in the 

shorter line? 

Mr. DEVANEY. Well, I think it is better to be in the shorter line. 

But let me say this. When the—when the board, the two-member 

board, said they were going to be able to go forward they said we 

would only decide routine cases. I mean, my client certainly didn’t 

believe it was a routine case, and spent substantial sums defending 

their position. 

There were 100 cases that were taken on appeal. So, in fact, I 

completely disagree with Ms. Davis as to her characterization that 

all of these were just these routine matters. They weren’t, you 

know. The fact that the boardmembers who wanted to delegate 

might have characterized them that way, certainly the parties that 

were being, you know, penalized didn’t view them that way. 

So I think it is just wrong. I think that is a wrong characterization. 

Ms. DAVIS. May I just clarify? 

Mr. HINOJOSA. Yes. Yes, you may. 

Ms. DAVIS. I distinguish between, on the one hand, describing 

these cases as non precedent-setting cases, which I do. The cases 

that aren’t rocking everyone’s world. But let me clarify. And I do 
70 

agree with Mr. Devaney. These cases matter to the parties. They 

matter to the parties a lot. 

And the fact that they were able to get decisions and certainty— 

and two-thirds of them, after the two-person board was declared 

quorum-less, decided to stick with those decisions. So I think those 

are important, and I think it shows the process works. 

Mr. HINOJOSA. My time has—— 

Mr. DEVANEY. Can I just say I disagree with that. I think what 

happens is, if it is a notice posting—which was a lot of the issues 

there—the parties are not going to spend resources on lawyers, or 

their own resources, trying to have a notice posting changed. But 

on this—— 

Chairman KLINE. But—— 

Mr. DEVANEY. Yes. 

Chairman KLINE. The gentleman’s time really has expired. 

Mr. DEVANEY. Thank you, Mr. Chairman. 

Mr. Goodlatte? 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Devaney, how many NLRB votes are necessary to override 

an NLRB precedent? 

Mr. DEVANEY. Well, I think that is really important, Congressman. In fact, historically—at least going back to when I became a 

member of the board in 1988, coming forward to today—by tradition, the boardmembers have agreed that they will not change 

major precedent for significant precedent unless they have a fivemember board and a majority of three. 

And one of concerns, and one of the main concerns I have about 

the cloud over these recess appointments is, if there are major 

changes in policy by the new board, with a recess-appointed 

quorum—three of the five being recess appointees—then I do that 

these major cases are subject, then, after the litigate and the 

court’s resolution, to be found not to be properly decided. 

And that is bad process, that is bad policy. 

Mr. GOODLATTE. So constitutional niceties could have some serious implications for people who not only might be waiting some 

time to get a decision, but then once the decision is rendered if it 

is then reversed because of the Supreme Court’ ruling, you then 

have to start the process over again. Is that—— 

Mr. COOPER. No question about it. And I have to say that the 

600 rubber stamps by the new board were also something I don’t 

think was the finest hour of the NLRB when they revisited the 

two-member decisions. Only a handful of decisions came out differently, and I don’t think that is particularly a good from a due 

process perspective. 

Mr. GOODLATTE. And what is the NLRB’s responsibility as a neutral arbitrator? 

Mr. COOPER. Well, you know, I think that the board is supposed 

to impact the National Labor Relations Act, boardmembers are 

supposed to call them as they see them. You know, I think that is 

the proper functioning of the agency. I mean, certainly the Congress set up this statute so that when presidential elections happen 

they mean something, and the new president gets to appoint his 

members if there are vacancies on the agency. 
71 

Mr. GOODLATTE. Do you think you are, just noting the rubberstamping of the overwhelming majority of those recent decisions, 

do you think that reflects on their being a neutral arbitrator now? 

Mr. COOPER. No. In fact, I thought was an unfortunate result of 

their original mistake, and decision to go forward when they only 

had two members. 

Ms. DAVIS. I think Member Schaumber would actually be quite 

distressed to hear—— 

Mr. GOODLATTE. Ms. Davis. Regular order, Mr. Chairman. Ms. 

Davis was not recognized to answer the question. 

I have a question now for Mr. Cooper about the legal constitutional niceties that Ms. Davis referred to. 

Mr. DEVANEY. Congressman, could I just follow up one thing? 

Mr. GOODLATTE. Go ahead, Mr. Devaney. 

Mr. DEVANEY. And I talked to Member Schaumber and, in retrospect, I think he regrets having agreed to do the two-member decisions. 

Mr. GOODLATTE. Thank you. 

Mr. Cooper, when we talk about constitutional niceties here, we 

are not simply talking about the implications for these three appointments to the board, two of whom by the way were nominated 

with a couple of weeks of when the president, in my opinion, 

abused his authority under the Constitution and named them as 

recess appointments. 

But be that as it may, the constitutional niceties referred to by 

Ms. Davis have implications far beyond those three members, do 

they not? 

Mr. COOPER. They do. 

Mr. GOODLATTE. They have implications far beyond the National 

Labor Relations Board, do they not? 

Mr. COOPER. They do, Mr. Goodlatte. 

Mr. GOODLATTE. They have implications that affect, really, the 

power of the United States Senate, acting as the designated portion 

of the United States Congress to advise and consent on presidential 

appointments with regard to virtually any appointment. 

And it would really nullify the ability of the Senate to act in a 

timely fashion to review people for appointments if it were found 

that a couple of weeks after the president named somebody, when 

Senate is in pro forma session, that any president going forward— 

this one or any in the future—could name anybody they wanted to, 

to any position in the executive branch or judicial branch of our 

government. 

Is that not correct? 

Mr. COOPER. The recess appointment power would be very substantially, substantially expanded. And it is difficult to see what 

the limit on it would be, other than political limits, Mr. Goodlatte. 

Yes. 

Mr. GOODLATTE. And those, therefore, constitutional niceties referred to by Ms. Davis are, in fact, going right to the very core of 

the United States Constitution in terms of the ability of the legislative branch to provide a crucial check against the enormous executive branch of our government, which has grown and grown and 

grown in terms of the number of agencies, the number of political 

appointments, the number of powers that are exercised by that 
72 

branch of the government to the detriment of those in the legislative branch who want to provide a check against the abuse of that 

power which one would think, exercising a recess appointment 

when the Senate is not in recess for these three members of the 

National Labor Relations Board, by this president seems to be a 

very serious abuse of executive power. 

Do you agree with that? 

Mr. COOPER. It would go to the core of the very careful design 

of the framers to divide the appointment power for vacant federal 

offices between the president, as a nominating authority, and the 

Senate as the confirmation authority. 

Chairman KLINE. And the gentleman’s time has expired. 

Mrs. Davis? 

Ms. DAVIS. Thank you very much. I would—oh, that Mrs. Davis. 

Sorry, the other Susan Davis. You can understand—I am sorry. 

Mrs. DAVIS OF CALIFORNIA. Thank you, Mr. Chairman. I appreciate that, and certainly want to acknowledge and recognize, you 

know, my namesake here, also a Berkeley grad. So that is good to 

have you here. 

But I wanted to actually give Ms. Davis an opportunity to respond at this time. Because I think certainly my colleague, there 

was sort of a tone there that I think is appropriate for Ms. Davis 

to be able to respond to the issue of the constitutional niceties, 

clarifying any way that she wanted to. 

But I also wanted to just speak to the uncertainty here that is 

been stated. And I am sorry that I had to leave for a few minutes 

and may have missed other questions regarding that. But certainly, employers are obviously concerned about that issue and 

what moves forward. 

And I want you to respond to that. Because we know, and I am 

sure Ms. Davis, having, you know, advocated and worked hard on 

behalf of unions and working families in this country also sees that 

they don’t always win the battle. There are issues before the organization, and they have to respond to that. So everybody wants certainty, and we know that that certainly affects our economy today. 

Ms. Davis, could you first respond. And then also on that issue 

of areas in which we need to have an active organization here in 

order to move forward? 

Ms. DAVIS. Thank you very much. I am not going to take up the 

chamber’s time on any more of the constitutional debate. I think 

we have all made our views clear. I would like to say two things 

before I answer your question. 

One is with respect to the picture of recess appointments gone 

wild, I really want to clarify what the facts are. Which is that this 

president has made 32 recess appointments, compared to more 

than a hundred recently done by past presidents. He is done so 

consistent with NLRB recess appointments in the past, and he has 

done so solely enable to allow two agencies to function, which I 

think distinguishes this from anything. 

The second point I wanted to make very quickly is on precedent 

and the point that was made on precedent. Congress entrusted the 

enforcement of this act to an administrative agency rather than to 

the courts solely so that it could be free of precedent, and that it 
73 

could adjust itself to the workplace and the needs of the workplace, 

and the imperatives of collective bargaining. 

The fact that people may not like what a board is going to do is 

not enough to essentially unravel what the statute has mandated 

that this board do. In terms of your ultimate question, which is 

what is the impact, I want to give you one example from my own 

practice. 

I represented, years ago, a union, a national union, of registered 

nurses. There were nurses in Salt Lake City who came to this 

union—it is not a big union town—and said we would like a union 

because every day we are forced to do mandatory overtime. So 

there was a secret ballot election held. 

Eighty percent of the members, the nurses, signed cards. And the 

regional director found that every single nurse in that unit, virtually every single nurse, was a supervisor. Notwithstanding that 

it was sort of impossible to be supervising yourself. 

That decision, under these circumstances, would have nowhere to 

go. There would be no board to say let us look at this soberly and 

see whether, in fact, the entire unit is a supervisor. That is one of 

many, many examples that, notwithstanding the business that gets 

done at the region—and there is business done at the region—that 

ultimately any employer that wants to resist unionization will be 

able to do so unless we have a fully-functioning board that can 

render decisions. 

Mrs. DAVIS OF CALIFORNIA. Would anyone else like to respond to 

that issue of uncertainty from—— 

Mr. COOPER. Did I just say that the best policy result would be 

to have a five-member board, confirmed with the advice and consent of the Senate, making that decision? 

Mrs. DAVIS OF CALIFORNIA. We all, always, have a best scenario 

that we would like to see, I can assure you, from where we sit. 

Many, many times we don’t think it has been the best way that 

things have been resolved, either. So I just want you to know that. 

Mr. COOPER. I appreciate that, Congresswoman. 

Mrs. DAVI OF CALIFORNIA. Yes, okay. Thank you very much. My 

time is up. 

Chairman KLINE. Thank the gentlelady. 

Mr. Kelly? 

Mr. KELLY. Thank you, Chairman. And I am sorry I have missed 

most of the hearing. But I guess I come down to I have only been 

here a year. And it has been a fascinating year. And I guess we 

just can’t wait—can either go from a campaign slogan or to the way 

we actually run government. 

And we can pick and choose things that we can wait for and 

things that we can’t wait for. I am a little bit confused. Because 

I believe that this happened not too long ago. And under section 

Article One, Section Five, Clause Two of the U.S. Constitution, the 

Senate is vested with the power to determine the rules of its proceedings. 

Pursuant to this power, at the end of the Bush administration 

Senate Majority Leader Reid frequently codified pro forma sessions 

during recesses occurring within sessions of Congress to prevent 

the president from making recess appointments. November 2007, 

the Senate majority leader explicitly stated that the Senate would 
74 

be coming in for pro forma sessions during the Thanksgiving holiday to prevent recess appointments. 

Now clearly, Senator Reid considered these pro forma sessions to 

be actual sessions of the Senate that broke up the recesses. So during the final 14 months of the Bush administration, in which the 

Senate broke up recesses or pro forma sessions, the president made 

no recess appointments. 

And I guess, Mr. Cooper, I really do, I question this. Because it 

is not just a matter of trust, which it seems the American people 

are having less and less trust in the the way we run Congress and 

the way the administration runs this. It goes back to another word 

that seems to be coming up quite often, and it is ‘‘hypocrisy.’’ 

And it is defined as ‘‘behavior of people who do things that tell 

other people not to do; behavior that does not agree with what 

someone claims to believe or feel.’’ And I have got to go back to, 

again, Mr. Reid and, at the time, Senator Obama, really agreeing 

you shouldn’t be making these appointments. 

You shouldn’t be doing this. I mean, I guess when it suits you 

it feels pretty good. And when it doesn’t suit you, you can find an 

end run on it. So if you could just tell me just a little bit on that. 

What is your feeling on that? I mean, it was—is there really a precipice? Does it say that you shouldn’t be making these appointments, or does it? 

I mean, when does it matter? I mean, when it matters to me and 

I can say that it is important, or then I could say, ‘‘Well, you know 

what? I guess in that situation I meant it, in this situation I don’t.’’ 

And this idea that we just can’t wait, how long would we have had 

to wait to actually get these folks vetted and approved? 

Mr. COOPER. Well, Mr. Kelly, it is certainly historically accurate, 

as you have recounted, that the first time that this pro forma session method of calling the Senate into session was ever used was 

under the Democratic regime and against, essentially, President 

Bush’s ability to make recess appointments. 

President Bush, as you say, did not make any recess appointments from that point forward. He, one must assume, respected the 

Senate’s judgment. And what I would suggest is essentially binding 

judgment, under its own rulemaking power, to determine for itself 

when it is in session and when it is not. 

And not until January 4 has a president—and here, President 

Obama, obviously, decided not to respect that, that judgment of the 

Senate concerning its own proceedings. I have testified, and I have 

provided the committee with my lengthy statement on the constitutionality of this. And I simply believe that President Obama exceeded his authorities when he did so. 

Mr. KELLY. No, and I appreciate that. And I guess, really, we can 

look at the Senate as truly being the silent majority. When it 

comes to anything really important, they remain very silent. I just 

don’t understand how somebody who could have been so articulate 

in the previous administration suddenly goes deaftone with this. 

And says, ‘‘Wow, you know, I am not sure.’’ 

But it is truly the height of hypocrisy the way these things are 

working right now. In the previous administration, don’t do it, 

shouldn’t do it, Senate has to vet them. And to this one it is like, 

well, we just can’t wait. We can’t wait for these folks to actually 
75 

run our government. We are going to have to just find a way to 

get around them. 

I think it is absolutely pathetic and preposterous that we sit back 

and we have to have hearings on things that, to the average guy, 

looks to be, again, the height of hypocrisy to say one thing and 

then do quite another. And I thank you. 

And I yield back my time. 

Chairman KLINE. The gentleman yields back. There being no 

other members to ask question, I want to thank the panel. And I 

am going to yield to Mr. Miller for any closing remarks and comments that he may have. 

Mr. Miller, you are recognized. 

Mr. MILLER. Thank you, Mr. Chairman. And thank you again to 

the witnesses and to all of the members who participated. I think 

my conclusion would be, at the end of this hearing, is that this 

should be in the Supreme Court. Whether a Democratic leader or 

a Republican leader or a constellation of leaders between the House 

and the Senate, or the 60-vote rule conspired to deny the president 

the right to have and make recess appointments should be determined by the court. 

I appreciate the right of the Senate to set its own rules, but does 

the right to set its own rules get to trump the president’s constitutional authority? I don’t know the answer to that question. I think 

I know the answer I like. I am stunned that George Bush didn’t— 

when you see a construct that is admitted to, designed to prevent 

you from exercising your constitutional authority, I think you may 

have an obligation to challenge that, as president of the United 

States. 

Just as the Senate or the House would challenge it immediately 

if we thought the president was stepping in, when they swarmed 

in here and, you know, the Department of Justice starts swarming 

in here opening up members of the offices, the bipartisans said, 

‘‘Whoa, whoa, whoa, whoa. Out of this building,’’ under the Constitution. 

So these are important decisions. And you clearly had a construct 

here, you had a construct. The House wasn’t going to let the Senate 

go into recess, and they weren’t going to let the requirement to 

come in every 3 days to do legislative business that couldn’t be 

agreed to by unanimous consent. 

And you saw that it was on TV night after night in the House, 

where a member would stand up on the House, just try to, you 

know, strike the last word, speak for one minute, do something. 

The person in the chair abandoned the chair, closed it down. They 

wanted nothing to happen here. 

It is interesting, and I think Ms. Davis makes a critical point. 

What is different about this is there is a Consumer Financial Protection Bureau that can’t function without a director, and this 

agency can’t function without a quorum. And we know the interests 

that are trying to keep this agency from functioning, including a 

majority of the Republican caucus in this House that sought to 

defund it. 

They don’t see value added here for the employer community or 

for the employee community. So nothing gained, nothing lost, you 

know. They are happy with that decision. You have Senator from 
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South Carolina saying he thinks, you know, if this agency ceases 

to function that is progress. 

But that is not the president’s duty, and that is not the president 

carrying out the function of his office. And that doesn’t meet the 

demand of where there’s people trying to be protected against the 

machinations of the financial community that we have witnessed 

over the last several years, or workers trying to be protected in the 

place, or the employer’s trying to be protected. 

So this isn’t about this committee. We won’t resolve this issue. 

We can argue this, and we damn near have, until the cows come 

home. The fact of the matter, this belongs in the court for the sake 

of our Constitution. And I think it is just very important to understand. I don’t know, maybe the court can ignore all of the background. 

But this table was set for a purpose, and the purpose was if the 

Senate had wanted to go the House could have kept them from 

going into recess. So you came up with this other mechanism. I was 

told a lot of times, in law school, that just can’t do directly you 

can’t do indirectly. So they couldn’t directly deny the right of a recess appointment so they put together a construct to deny him the 

right of recess appointment. 

I think this president is absolutely correct, and did a lot of work 

with George Bush. I am just stunned that he didn’t see it the same 

way in terms of the office of the presidency. There is a lot of things 

they do down there in the name of the office of the presidency that 

strikes us as crazy, wrong, outrageous and all the rest of that. 

But there is a certain duty that runs with that president beyond 

what most people associate with it. And I think, in this case, he 

is properly challenging the—I got a lot of things he could challenge 

in the Senate. I think we have unanimity over here on that. But 

in this particular one, I think he is right in terms of whether or 

not agencies that we have designed legislatively not to function except under certain constructs that they can’t function, and he is 

prevented from putting in place the mechanism that will allow it 

to function—in this case, a director and/or members of the board. 

And it is clear what is going on here. This is an absolute assault 

against the National Labor Relations Board. And it will continue, 

and hopefully the Supreme Court will speak sooner than later. I 

hope it doesn’t take 2 years, but if it does the Constitution’s worth 

it and we will see where it goes. 

Thank you very much for your participation in the hearing. 

Chairman KLINE. I thank the gentleman. I want to thank the 

witnesses, of course. I think there has been agreement here in 

some areas. Everybody at the table, and probably everybody up 

here, agrees that the president has the authority, the power, the 

constitutional power and sometimes the absolute necessity to make 

recess appointments. 

There is clearly a difference over whether or not he had the 

power to make a recess appointment when the Senate was in pro 

forma session. And the testimony here today has revealed that this 

is going to cause difficulties throughout our economy as employers, 

employees, workers, whether unionized or not, are struggling over 

whether or not decisions made by this board—the five-member 
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board that has now a majority of three that were appointed while 

the Senate was in pro forma session. 

That raises all sorts of questions. we are trying to look at things 

that can help Americans get back to work, create jobs. And it is the 

judgment of many of us that this has put us in a awkward position. 

The reason that the Constitution requires Senate confirmation is so 

that the president and the Congress—in this case, represented by 

the Senate—will come together and agree on what should constitute the makeup of a board such as the NLRB or the cabinet. 

And this president has made appointments that have been confirmed by the Senate, cabinet secretaries, justices to the Supreme 

Court, other judicial appointees, other agency appointees. So it is 

possible for this president or any president, but we are talking specifically this president, to make an appointment and have it confirmed by the Senate. 

What we had hoped would happen here, and would resolve this 

uncertainty, is that the president make an appointment and then 

work with the Senate to get appointees that they can actually confirm so that you have a working quorum. Now, we are not going 

to decide that. I agree with the ranking member and others that 

we are not going to be able to overturn that here in the House. 

But we are concerned about the act, the National Labor Relations Act, and the board fall under the jurisdiction of committee. 

And at some point, it seems to me, we may need to address that 

law. We have made some changes to the National Labor Relations 

Act from this committee in this House that haven’t been acted 

upon in the Senate. 

My thought is that at some point it is going to require a larger 

overhaul. So this information is informative. This is not a legislative hearing. I don’t have such a piece of legislation here in front 

of me. But clearly, there have been difficulties. I have expressed to 

the ranking member, aside, that we see this problem with the National Labor Relations Board year after year after year. Because of 

the nature of it, it swings back and forth depending upon whether 

or not you have a Republican in the White House or a Democrat 

in the White House. 

It is worth our taking a look at. And I think the concerns of 

many of us, and the concerns raised here, are important as we look 

forward to the impact going forward and things that we may want 

to consider in this committee to affect that, acknowledging that we 

are not going to tell the Supreme Court or any other courts how 

they are going to rule on what I think is a very, very important 

matter. 

Again, this is a very, very learned and distinguished panel of witnesses. I have learned new words here today. I will probably never 

use them again. But, again, I want to thank you very, very much 

for your attendance today. There being no further business, this 

hearing is adjourned. 

[Whereupon, at 12:19 p.m., the committee was adjourned.] 

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