Phil Kerpen

On April 12th the House passed H. R. 1120, the Preventing Greater Uncertainty in Labor Management Relations Act, on a narrow 219 to 209 vote. The bill would prohibit the National Labor Relations Board (NLRB) from taking any action that requires a quorum unless and until the Senate confirms new board members or the Supreme Court overturns the recent D.C. Circuit decision that found President Obama's purported appointees to the board to be unconstitutional. The bill would not stop workers from petitioning for union elections or restrict NLRB regional offices from accepting and processing unfair labor practice charges.

That this legislation is even necessary shows the remarkable contempt the Obama administration has for the rule of law and the U.S. Constitution; that not a single House Democrat voted for the bill shows that the party is willingly to blindly support the White House without regard to the Constitution.

"An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction," Chief Judge David B. Sentelle wrote in Noel Canning v. NLRB, "This cannot be the law."

Yet White House Press Secretary Jay Carney insisted, oddly, that the decision "does not have any impact, as I think the NLRB has already put out, on their operations or functions, or on the board itself." And in the recent House floor debate, a parade of Democrats pretended that Obama's attempt to make a "recess appointment" when the Senate wasn't in recess was comparable to actual recess appointments made by previous presidents.

Let's be clear. The president declared the Senate to be in recess the day after it gaveled into session. The circuit court couldn't have been clearer, but the NLRB keeps making decisions anyway.

It's creating paralyzing uncertainty. "Roughly 600 decisions are now constitutionally suspect and that number grows with each new decision," House Education and Workforce Committee Chairman John Kline said. "Workers, employers, and unions are in limbo."

The lawless non-recess appointment by the president has begotten more lawlessness. Some companies are following decisions from the board, while others are ignoring them. Lots of people are paying lots of lawyers to do work that may have to be done all over again. It's a mess, and everybody would be well-served by at least putting the board on hold until the Supreme Court rules later this year.

H.R. 1120 is a simple and effective solution to this problem, and has, no thanks to Democrats, passed the House. The question now is whether Senate Democrats will be willing to abdicate their own power of advice and consent. This is about much more than the NLRB.

If Senate Democrats refuse to take up the bill, or take it up and vote against it, voters can reasonably assume that they are unwilling to require advice and consent, one of the core constitutional duties of their office. Such a dereliction should give voters pause.


Phil Kerpen

Phil Kerpen is president of American Commitment, a columnist on Fox News Opinion, chairman of the Internet Freedom Coalition, and author of the 2011 book Democracy Denied.

American Commitment is dedicated to restoring and protecting America’s core commitment to free markets, economic growth, Constitutionally-limited government, property rights, and individual freedom.

Washingtonian magazine named Mr. Kerpen to their "Guest List" in 2008 and The Hill newspaper named Mr. Kerpen a "Top Grassroots Lobbyist" in 2011.

Mr. Kerpen's op-eds have run in newspapers across the country and he is a frequent radio and television commentator on economic growth issues.

Prior to joining American Commitment, Mr. Kerpen served as vice president for policy at Americans for Prosperity. Mr. Kerpen has also previously worked as an analyst and researcher for the Free Enterprise Fund, the Club for Growth, and the Cato Institute.

A native of Brooklyn, N.Y., Mr. Kerpen currently resides in Washington, D.C. with his wife Joanna and their daughter Lilly.