Malo periculosam, libertatem quam quietam servitutem.



July 2013

Harry Reid’s Filib(l)uster and the NLRB

Written by , Posted in The Courts, Criminal Justice & Tort

The big news yesterday was that Republicans apparently caved on their opposition to several Obama administration appointees, a deal which will stave off Harry Reid’s plan to invoke the so-called “nuclear option” to end filibusters on presidential appointments. There are two things I find of interest in this whole brouhaha – the administration’s abuse of recess appointments to circumvent the Senate’s role to provide Advice and Consent, and the implications should Harry Reid go through with the “nuclear option.”

Here’s what I previously said about President Obama’s “recess” appointments:

What’s interesting to me is how ridiculous is much of the rhetorical justification for the move. The argument I frequently see goes something like this: Republicans blocked Obama’s appointments, therefore he just had to act.

This line of reasoning renders meaningless the entire concept of Advice and Consent. What is the point of even requiring Senate confirmation if the refusal of the Senate to do so just means that the President should go around them? If the Senate is expected to be nothing more than a rubber stamp, then the whole process is a massive waste of time.

The appointments have since been found by multiple courts to be invalid, the most recent of which being the Fourth Circuit in a ruling issued just yesterday afternoon. The Obama administration has insisted they were legitimate appointments, and the issue is now before the Supreme Court in NLRB v. Noel Canning.

The exact fallout from the rulings remains uncertain at least until Noel is decided, due largely to the fact that the legality of rulings issued thanks to Obama’s invalid appointments are in question, though many other challenges are currently proceeding.

Bruce McQuain raises an interesting question regarding how the deal to avoid Harry Reid’s bombing of Senate rules plays into the issue. President Obama and Democrats responded to the rulings against the NLRB by insisting they were legal appointments, yet now are promising two new appointments. McQuain writes:

If the Democrats agreed to have two new appointments made to the NLRB, aren’t they at least tacitly admitting the current two appointments are illegal?  And if so, what does that make any rulings the current NLRB made during that time it was illegally constituted?  Common sense says those rulings should be invalidated, don’t you think?

We’ll see how the issue shakes out with upcoming cases, but it’s worth pointing out that this mess is the direct result of the President’s novel insistence that he knows better than the Senate when they are in session or not.

The other issue of interest regarding the deal is the nature and structure of the Senate itself. Harry Reid has essentially said he and 50 other Senators can change the rules at any time to read as they please. If that is going to be the case, why even bother with rules? Just make it a majority rules, anything goes body and be done with it.

This contrasts with the purpose and understanding of the Senate as constructed. Senators were given longer terms and their elections staggered (not to mentioned originally not even determined by popular vote) in order so that it would serve as a counter-weight to the fickle nature of popular opinion that would hold greater sway in the House of Representatives.

Senator Lamar Alexander did a pretty good job with this argument in yesterday’s Washington Times:

This week’s “nuclear option” debate about whether U.S. senators should be permitted to filibuster presidential nominations was not about filibusters.

It was instead about whether a majority of senators should be able to change the rules of the Senate anytime for any purpose. Former Sen. Arthur Vandenberg of Michigan once offered the precise trouble with this idea: “If a majority of the Senate can change its rules at any time, there are no rules.”

…Over the years, there have been seven sub-Cabinet nominees blocked by filibuster — three Republicans and four Democrats, all since 1994.

…So, what were Democrats complaining about?For many Democrats, getting rid of the filibuster for nominees is the first step in turning the Senate into an institution where the majority rules lock, stock and barrel.

The Senate would become like the House of Representatives, in which a majority of only one vote could establish a Rules Committee with nine members of the majority and four of the minority. Every meaningful decision would be controlled by the majority. The result: The minority, its views and those it represents would become irrelevant.

It would be an unfortunate development if the Senate were to be turned into just a smaller House of Representatives. For those of us that welcome Congressional gridlock as a means to stay the worst impulses of knee-jerk legislators, the role of the Senate is essential. Though it’s worth pointing out that when the power shifts, many on both sides of the debate will switch sides. It may in the future be Lamar Alexander and his colleagues crying foul over minority obstructionism while Harry Reid demands respect for minority party rights. It wouldn’t be the first time.