As of now an agency of our government, the National Labor Relations Board (NLRB), is effectively shut down, unable to do its job. This is a “nullification” by Republicans, of laws that protect workers and companies, in exchange for campaign help from the 1%. They are simply obstructing, blocking appointments in order to keep the agency from functioning. The President has a responsibility to keep the government operating and must use his power to make recess appointments to get the NLRB up and running.


The mission of the National Labor Relations Board (NLRB), by law, is “to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.”

Once again, the reason we have the NLRB is:

“…to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.”

For readers who missed that, here it is in bold:

“to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.”

It’s The Law

That’s right, it is the policy of the U.S. government, and the law, to “encourage” unionization because higher wages and benefits helps Americans and our economy overall. By law.

It’s the law.

Influence Of The 1%

Yes, it’s the law. But so what? Paying good wages and providing benefits means that the 1% and their corporations might have to wait a bit longer to stash away a few billion more, so they are furious at such government “interference.” Yes, it is better for everyone in the long run when working people do better, but it isn’t better for the 1% right now, this quarter, so they fight every effort to help the middle class.

The 1% and their big corporations have a lot of influence. They dole out generous campaign contributions to those politicians who do their bidding. And they set up “outside groups” that are allowed to spend unlimited amounts to help those they favor and fight those they do not. And they hire lobbyists — and let current members of Congress and their staff know they can hire them, too, later, for extremely generous salaries, if they just play ball now.

Agency Shut Down

In 2010 the Republican majority on the Supreme Court ruled 5-4 that the NLRB must have a quorum of board members or it cannot decide cases. Ongoing Republican efforts to keep the Board from operating succeeded. Over 600 decided cases were thrown out. Big companies could continue to get away with firing people for trying to exercise their legal rights to organize unions so they could get better pay and benefits, regardless of what the laws said.

So Republicans are doing the bidding of the 1%. Today the NLRB is effectively shut down because it does not have enough Board members to function. Republicans in the Senate have blocked appointments to the Board, to keep it from operating, to prevent it from deciding cases, so that big companies can operate with impunity and continue to shovel all the gains from our economy up to the top 1%.


“Nullification” was the pre-Civil War “states rights” practice of Southern states simply ignoring federal laws. The Republicans are again engaging in nullification, on behalf of the 1%.

Kevin Drum at Mother Jones, in Nullification Makes a Comeback, explains,

Republicans are refusing to allow votes on President Obama’s nominee to head the new Consumer Financial Protection Bureau and on his nominees to fill vacancies on the National Labor Relations Board. In both cases, the Republican refusal is explicity aimed at shutting down these agencies.

… Republicans make no bones about why they’re doing this. They opposed the CFPB from the start, and they’re now using the filibuster as a way of unilaterally preventing it from operating even though it was lawfully created by a vote of Congress and signed into law by the president. Likewise, they’re afraid the NLRB is about to make some rulings they dislike, so they’re using the filibuster as a way of shutting it down by denying it a quorum.

The 1% are only 1%, and we are technically still supposed to be operating as a country where the majority rules. So when they can’t get their way the 1% engage in various schemes to get their way. We have seen an unprecedented use of filibusters to block the ability of the Congress to function. We have seen hostage-taking and shutdown attempts. In the case of the NLRB (and the new Consumer Financial Protection Agency) we are seeing another “nullification” effort — preventing the agency from operating by preventing appointments.

This is not politics, this is not bipartisanship, this is intentional obstruction to keep the government from operating.

Where Is Our President?

The President of the United States has a lot of power — if he chooses to exercise that power. One of his powers is to make appointments himself at times when the Senate is unable to make appointments. This is in the Constitution because the Founders understood how important it is to keep the government operating.

The Constitution is clear about the President’s power, and his implied responsibility to use that power to keep the government operating:

Article II Section 2: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Article II Section 3: …he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

If the House and Senate disagree on adjournment, the President can adjourn them. And when they are adjourned he can make recess appointments. The Congress is engaging in a charade of “pro-forma” sessions to give the technical appearance of being in session when they are not in session as part of this obstruction/nullification strategy by the agents of the 1% to keep our government from functioning for the 99%.

The 15-Second Option

The President had the power to make recess appointments at noon today, when the Senate was officially in recess between the first and second sessions of the 58th Senate. This would have kept this important agency in operation, doing its legally mandated job of protecting workers and companies. The president didn’t.

President Teddy Roosevelt used this power in 1903 to appoint 160 officials. The country survived.

Adjourn And Appoint

We can’t wait. We have an extraordinary situation here, where one of the parties, as a political strategy, in exchange for campaign assistance from the 1%, is obstructing for the purpose of preventing the government from operating. It is the duty of the President to keep the government operating.

Mr. President, this is outrageous. Working people need you to use your power to get the NLRB up and functioning. Please, adjourn and appoint — WE CAN’T WAIT!

This post originally appeared at Campaign for America’s Future (CAF) at their Blog for OurFuture. I am a Fellow with CAF.

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About the Author

Dave Johnson

Dave Johnson (Redwood City, CA) is a Fellow at Campaign for America's Future, writing about American manufacturing, trade and economic/industrial policy. He is also a Senior Fellow with Renew California. Dave has more than 20 years of technology industry experience including positions as CEO and VP of marketing. His earlier career included technical positions, including video game design at Atari and Imagic. And he was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the US.

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