Jessica M. Karmasek May 20, 2013, 6:30pm

WASHINGTON (Legal Newsline) -- U.S. Sen. Lamar Alexander, the ranking GOP member of the Senate Health, Education, Labor and Pensions Committee, said last week he would oppose two of President Barack Obama's nominations to the National Labor Relations Board.

Alexander, R-Tenn., said Thursday Sharon Block and Richard Griffin -- who Obama re-nominated to the five-member board in February -- continue to decide cases, even after a federal appeals court ruled that the two were unconstitutionally appointed.

In January, the U.S. Court of Appeals for the District of Columbia Circuit granted the petition of Noel Canning against the NLRB on the basis that the board lacked a sufficient quorum of members when it reached a decision regarding Canning.

That was based on the fact that Obama appointed three of the NLRB's five members -- including Block and Griffin -- without Senate confirmation on Jan. 4, 2012, with recess appointments.

But Canning argued that the Senate was in pro forma session, making Obama's appointments invalid.

"This is a part of a disturbing pattern of end-runs around Congress, whether it is with more czars than the Romanovs had; or executive orders that stretch the limits of executive authority; or using waiver authority to create, in effect, a national school board; or the Secretary of Health raising money privately for private organizations to do what Congress has refused to do; or whether it is recess appointments when there is no recess, it is important for our country's liberty to protect the separation of powers. Therefore, I cannot support the nominations of these two individuals," Alexander said during a committee hearing Thursday on the board's pending nominations.

"Recess appointments have to be made during recesses, or we have a situation where the president can just ignore Article One, the principal curb on the power of the executive."

Alexander said it is important to have a fully confirmed board. The agency, he explained, is charged with creating stability for employees, employers and unions to allow the nation's businesses to focus on succeeding and growing.

"But there is a troubling lack of respect for the constitutional separation of powers and for the Senate's role of advice and consent that is standing in the way of this confirmation process," he said.

"I also believe their decision to stay on creates enormous opportunity for confusion and waste."

He continued, "I agree we want certainty and the best way to have certainty is to have five confirmed members of the Board. The President could nominate two equally qualified members who did not sit on the NLRB when the court had decided that they were unconstitutionally there."

In February, Alexander called on Block and Griffin to leave the board, citing the D.C. Circuit's ruling.

In March, he, along with 17 cosponsors, introduced a budget amendment to defund decisions and regulations made by the board's quorum.

Then, last month, he introduced legislation that would prohibit the NLRB from taking any action that requires a quorum until the board members constituting the quorum have been confirmed by the Senate, the U.S. Supreme Court issues a decision on the constitutionality of the appointments to the board made in January 2012, or the first session of the 113th Congress is adjourned.

The Committee on Health, Education, Labor and Pensions is expected to vote this week on Obama's nominees to fill all five seats on the board.

In April, Obama also nominated Philip Miscimarra, a partner in the labor and employment group of Morgan Lewis & Bockius LLP, to be a member of the board.

Obama also re-nominated current NLRB Chairman Mark Pearce, and nominated Harry I. Johnson III to be a member.

Pearce has been chairman of the board since August 2011. He has served as a member since March 2010.

Johnson is currently a partner with Arent Fox LLP, a position he has held since 2010. Previously, he worked at Jones Day as a partner from 2006 to 2010 and as an associate from 1994 to 2005.

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