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Obama's latest NLRB gambit will fail

Members of the Senate Health, Education, Labor and Pensions Committee are set to vote this morning on a full slate of five nominees to the National Labor Relations Board. It will likely OK all five, who will then go into the legislative limbo that is the full Senate.

There are plenty of people on both sides to blame for the NLRB's current dysfunctional politicization. President Obama can start by looking in the mirror. He has often gone to extraordinary lengths to appoint pro-union activists. Republicans aren't about to do him any favors now.

The NLRB is the federal agency that oversees labor/management relationships. It's nominally independent, but its five board members are appointed. Traditionally, the president picks three and the minority party gets the remaining two.

In April 2009, Obama nominated Craig Becker, a former top lawyer with Service Employees International Union. SEIU, as it happens, was the first major union to back Obama's presidential bid.

Becker was a radical by anyone's definition. He once argued as a labor attorney that "employers should have no right to be heard in either a representation case or an unfair labor practice case" that comes before the NLRB.

Republicans filibustered his nomination, which sat in limbo for months. On March 27, 2010, Obama used his recess appointee powers to place him on the board. Becker's term expired last year.

On January 4, 2012, Obama recess appointed current members Richard Griffin, a former top lawyer with the International Union of Operating Engineers, and Sharon Block, a former Ted Kennedy staffer.

Republicans fumed, particularly over Griffin and Block, since they had acted to keep the Senate technically in session at the time. Democrats applauded the appointments, saying the president was forced into it by Republican intransigence.

The irony here was that the Republicans were using tactics innovated by ... Senate Majority Leader Harry Reid, D-Nev., to keep President George W. Bush from making recess appointments.

Former NLRB chairwoman Wilma Liebman, a Democratic appointee, noted in a Monday Politico op-ed that she once served a 27 month stretch as one of only two board members. (The board requires at least a three-member quorum.)

"Senate Democrats took no action during President George W. Bush's last year of office on his nominations to fill three vacancies ... and decided not to recess at all that year to preclude the president from making any recess appointments," Liebman wrote.

The difference here is that Bush stopped making the recess appointees when Reid acted to prevent them. Obama has shown no such deference to the balance of powers doctrine, making appointments even when Republicans argued the Senate was technically in session.

In the case of Block and Griffin, Republicans hadn't even tried to block them. Obama appointed them before the Senate could even holding hearings.

This backfired spectacularly in January when an Appeals Court ruled Block and Griffin's appointments unconstitutional. That meant the NLRB had lacked a valid quorum for a year, putting every decision it made since then in doubt.

The NLRB tried to press on, arguing that other courts had rejected this argument, but ended up asking the Supreme Court to resolve the matter anyway. Just last week, a different court ruled Becker's recess appointment unconstitutional too.

So, in a fairly transparent bid to extract themselves from this quagmire, the Obama administration is now pushing the GOP to approve a full slate of nominees, including Block and Griffin. The GOP isn't likely to bite, at least not until the Supreme Court rules -- assuming it even takes the case.

Democrats will decry Republican obstructionalism for this -- and they will have a point. But the GOP can quote Reid's comments from 2007 on the subject:

"Significant progress can still be made on nominations. I am committed to making that progress if the president will meet me halfway. But that progress can't be made if the president seeks controversial recess appointments."

Sean Higgins (shiggins@washingtonexaminer.com) is a senior editorial writer for The Washington Examiner. Follow him on Twitter at @seanghiggins.