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Hatch, 39 other senators send letter to Obama: NLRB appointees must step down

WASHINGTON, D.C. – Sen. Orrin Hatch, along with 39 other senators, sent a letter to Sharon Block and Richard F. Griffin, Jr., the two individuals whose alleged appointments to the National Labor Relations Board have been ruled unconstitutional by a federal court, demanding that they leave the board immediately, “withdraw from all Board activities and stop drawing salaries and other benefits associated with the positions you purport to hold.”

Last year, Hatch joined 41 Senate colleagues in filing in an amicus brief in the case against Obama’s NLRB Appointees (Noel Canning v. NLRB) arguing that these appointments were unconstitutional; the brief is attached here: Senators Amici Curiae Brief in Noel Canning v NLRB (CADC No 12-1115) – Amicus Brief for Sen McConnell et al (09-26-2012) (As Filed). That came after Hatch spearheaded a letter in December 2011 that was signed by every Senate Republican which called on President Obama to not recess appoint nominees to NLRB; the 2011 letter is attached here: 12.19.11 Letter to POTUS re NLRB Nominees.

The senators who signed the letter along with Hatch are: Sens. Kelly Ayotte, R-N.H., John Barrasso, R-Wyo., Roy Blunt, R-Mo., John Boozman, R-Ark., Richard Burr, R-N.C., Saxby Chambliss, R-Ga., Daniel Coats, R-Ind., Thad Cochran, R-Miss., Susan Collins, R-Maine, John Cornyn, R-Texas, Ted Cruz, R-Texas, Michael Enzi, R-Wyo., Deb Fischer, R-Neb., Jeff Flake, R-Ariz., Lindsey Graham, R-S.C., Chuck Grassley, R-Iowa, Dean Heller, R-Nev., John Hoeven, R-N.D., James Inhofe, R-Okla., Johnny Isakson, R-Ga., Mike Johanns, R-Neb., Ron Johnson, R-Wis., Mark Kirk, R-Ill., Mike Lee, R-Utah, John McCain, R-Ariz., Jerry Moran, R-Kan., Rand Paul, R-Ky., James Risch, R-Idaho, Pat Roberts, R-Kan., Marco Rubio, R-Fla., Tim Scott, R-S.C., Jeff Sessions, R-Ala., Richard Shelby, R-Ala., John Thune, R-S.D., Patrick Toomey, R-Pa., David Vitter, R-La., and Roger Wicker, R-Miss.

The text of the letter sent this week is below:

Jan. 31, 2013
Board Member Sharon Block
Board Member Richard F. Griffin Jr.
National Labor Relations Board
1099 14th St. NW
Washington, DC 20570-0001

Dear Ms. Block and Mr. Griffin, Jr.:

We write to insist that you immediately leave the National Labor Relations Board, withdraw from all Board activities and stop drawing salaries and other benefits associated with the positions you purport to hold, as your purported appointments have been found constitutionally invalid.

On Jan. 25, 2013, in Noel Canning v. NLRB, a three judge panel of the District of Columbia’s U.S. Circuit Court of Appeals unanimously ruled that your “recess appointments” on Jan. 4, 2012 as members of the National Labor Relations Board violated Article II, Section 2 of the United States Constitution. The court therefore vacated the judgment in one case before it. But under the court’s decision, all cases in which your participation was necessary, or will be necessary for a quorum, should be vacated, as the Board was not lawfully constituted in any of these matters.

The court’s decision was clear.  With regard to the President’s argument about the constitutionality of your appointments, they wrote:

This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. The checks and balances that the Constitution places on each branch of government serve as “self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.” Buckley v. Valeo, 424 U.S. 1, 122 (1976). 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. This cannot be the law.

The right course of action is for you to leave the Board immediately and cease acting in an official capacity that you legally lack, and for the President to nominate new individuals and allow the Senate to provide its advice and consent.  We urge you to do so.

Submitted by: The Office of Sen. Orrin Hatch

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