01/26/2013 10:22 am ET Updated Jan 26, 2013

Mike Johanns, Republican Senator, Demands Resignation Of 'Unconstitutional' Obama Appointees

A Republican senator is demanding that officials appointed by President Obama last year step down from their posts on the National Labor Relations Board after a federal district court on Friday ruled their appointments unconstitutional.

Senator Mike Johanns (R-Neb.) posted a press release to his website Friday night saying he had sent letters to three appointees -- Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin of the National Labor Relations Board, and Richard Cordray, director of the Consumer Financial Protection Bureau -- stating that "in light of today's opinion by the U.S. Court of Appeals for the D.C. Circuit... it is appropriate that you resign effective immediately."

The court's decision actually only relates directly to the appointments of Block and Griffin, though it does cast doubt on the validity of Cordray's as well.

Johanns wrote in his letter to Griffin that "any action taken by the NLRB in the last year should be invalidated," since the Board would technically have been operating below quorum had Block, Griffin and Flynn's appointments not been pushed through.

In another letter, this one to the Government Accountability Office, Johanns argued that certain actions taken by the CFPB were also invalid, as "certain rulemaking and enforcement powers did not statutorily vest in the CFPB until a director was in place." The Nebraska Senator went on to direct the GAO to launch an investigation to determine "what additional actions taken by the NLRB are void for lack of a quorum... [and] what actions taken by the CFPB would be implicated by today's ruling."

U.S. Court of Appeals for the D.C. Circuit ruled specifically that the appointments were in violation of the provision of the Constitution that gives the president the authority to bypass Senate confirmation on certain appointments -- including those to the NLRB -- only on occasions when the Senate is in recess.

According to the Associated Press:

When Obama filled the vacancies on Jan. 4, 2012, Congress was on an extended holiday break. But GOP lawmakers gaveled in for a few minutes every three days just to prevent Obama from making recess appointments. The White House argued that the pro forma sessions – some lasting less than a minute – were a sham.

The court rejected that argument, but went even further, finding that under the Constitution, a recess occurs only during the breaks between formal year-long sessions of Congress, not just any informal break when lawmakers leave town. It also held that presidents can bypass the Senate only when administration vacancies occur during a recess.

The Obama administration plans to appeal the district court's decision to the Supreme Court.



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