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Our Constitution should not be ignored

Monday, October 22, 2012

I recently joined 41 of my colleagues in supporting a lawsuit to reign in President Obama's overreach and I appreciate the opportunity to explain why I think it is so important.

Earlier this year, President Obama deliberately sidestepped constitutional rules designed to limit the power of the Executive branch when he appointed three members to the National Labor Relations Board (NLRB) without seeking confirmation from the Senate.

The Constitution gives the Senate the authority to review and approve presidential appointees. It gives the President the power to make appointments without such approval only when the Senate is out of session. The problem is that when these appointments took place, the Senate was in session. Because the President violated the Constitution when selecting these board members, the NLRB has no legitimate authority to render decisions and all of its actions are rightfully subject to legal challenges.

This may seem like a technicality, but it is in fact a violation of principles enshrined in our founding documents by the President, and it has real-world implications. Noel Canning, a family-owned soft drink bottler, recently lost an NLRB appeal regarding a dispute over a labor agreement. According to the NLRB, the company must now enter into a collective bargaining agreement with a labor union.

The company filed a lawsuit against the NLRB, asserting that, because members of the board were unconstitutionally appointed, it had no authority act. I recently joined 41 of my colleagues in filing an amicus brief in the lawsuit challenging the constitutionality of President Obama's actions. The case is pending in the U.S. Court of Appeals.

No small business wants to be bossed around by bureaucrats. This ruling by the NLRB could stand alone as another example of this Administration's fixation with telling small businesses what to do. But what makes this situation particularly disturbing is the unconstitutional manner in which the bureaucrats were appointed, showing blatant disregard for the rules that our nation's leaders are obligated to abide by.

The contents of the Constitution are not mere suggestions. They are the recipe for a great America. I went through the process of congressional approval when I was appointed Secretary of Agriculture. Having been on both sides, I have a great appreciation for the Senate's role in the confirmation process. These rules are intended to limit the power of any one branch of government and ensure the voice of the people -- through their elected representatives -- is heard.

Our Founding Fathers created an ingenious system of checks and balances among the three branches of the federal government to prevent overreach. The President ignored these principles when he circumvented the authority of the Senate. It is now up to the third branch of government--the courts--to employ its checks and balances, and ensure the strength of our nation remains with the people and the principles that founded America.

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Senator--you are truly misguided. The real problem is that the Senate has refused, on partisan grounds, to process the President's appointments. As long as you refuse to do your job of actually voting on the appointments you cannot complain when the President invokes the recess appointments clause. He has a mandate to govern; he must do so. In the cases you complain about, the Congress as a whole had funded those agencies. Once that happens you cannot ethically block him from doing the job you required him to do.

You might find of interest this published defense of the President's recess appointments. They were not, as you and your obstructionist colleagues claim, done unconstitutionally.


When a president appoints, the Senate must carry out its corresponding duty. Put it to a vote! If not, be prepared to live with his recess appointment. And no, you cannot stop the clock by claiming pro forma non-business sessions of the Congress.

-- Posted by Jim3K on Mon, Oct 22, 2012, at 1:56 PM

The Senate Majority Leader, Harry Reid, a Democrat sets the legislative calendar on what is to be voted upon. Hence no budget for the past few years.

-- Posted by dennis on Mon, Oct 22, 2012, at 2:07 PM

Dennis, Reid's not the issue. The issue is getting the judiciary committee to vet the nominee. Committee referral allows the minority party to delay the vetting process. If the Senate truly wanted to vote on these things, they would move the non-controversial nominations directly to the executive calendar and concentrate on the others. Because they won't, the system gets clogged and the controversial appointments are not processed at all. The Senate needs to fix this.

I've never heard that Johanns wants to improve the consent procedure. In fact, he simply joined the GOP's effort to prevent the President from governing in the hope they can paint him as ineffective. (This is wrongheaded by itself.)

Reid (and all previous majority leaders) routinely put executive calendar matters to the floor for debate and vote. That is where the blue slip and filibuster blocks can be applied. At least at that stage there is public scrutiny, something not available when a committee blocks an appointment.

-- Posted by Jim3K on Mon, Oct 22, 2012, at 3:23 PM

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Sen. Mike Johanns
Sen. Mike Johanns
U.S. Sen. Mike Johanns is a former U.S. Secretary of Agriculture, Nebraska governor and Lincoln mayor.

Address: 404 Russell, Senate Office Building, Washington, DC 20510

Phone: (202) 224-4224
Fax: (202) 228-0436

You may contact Senator Johanns by emailing mike_johanns@johanns.senate.gov. If you would like to receive a response from Senator Johanns, please ensure you include your name, full address, and phone number.