GOP senators look to freeze work at agencies after court rejection of recess appointments

By Vicki Needham and Peter Schroeder - 01/31/13 04:38 PM ET

More than three dozen Senate Republicans are pressing two appointees to the National Labor Relations Board (NLRB) to step down immediately.

In a letter to Sharon Block and Richard Griffin, whose appointments were deemed unconstitutional last week by a D.C. court, 40 Senate Republicans are insisting that they leave the board, withdraw from all activities and stop drawing salaries and other benefits of the job.

"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," the letter said.

The letter comes on the heels of legislation being pushed by a trio of Republican senators who want to halt the work of the NLRB and the Consumer Financial Protection Bureau (CFPB) after a court ruling cast doubts on the constitutionality of their appointed leaders.

The measure would prevent top officials from conducting work at the agencies and from enforcing and implementing decisions and regulations, and would bar any federal funds being used.

On Friday, a federal appeals court ruled that President Obama's three recess appointments to the NLRB were unconstitutional and ignored the Senate's "advice and consent" role.

The president's appointment of Richard Cordray to serve as the CFPB's first director came on the same day, leading many to question if his appointment will similarly be struck down.

"These agencies have been operating under a ruse for more than a year. Any decisions or regulations made by the people who have no right to be there are invalid," said Sen. Mike Johanns (R-Neb.). "This legislation forces them to stop functioning as if they legitimately hold office and recognize the reality that the President overstepped his constitutional authority."

Johanns told reporters on Thursday that the ruling specifies that the Senate determines when the upper chamber is in recess, not the president.

"What I support is legal appointments," he said.

The bill, also backed by Sens. Lamar Alexander (R-Tenn.) and John Cornyn (R-Texas), would prohibit the NLRB from taking any action or enforcing any decisions that required the approval of a quorum of members since the appointments were made one year ago.

The NLRB lacked a quorum before the president made the three appointments to the five-member board — the bill would effectively freeze all work the NLRB board had done in the last year.

The bill is not asking the appointees to return any money they have received so far.

"We're asking the President to sit down with us and work on these issues," Johanns said.

But, ultimately, the president will have to "decide what he wants to do."

The measure also would prevent the CFPB from receiving any more funds from the Federal Reserve to do anything that requires a director. The CFPB's funding structure, in which it receives funds from the Fed, has long been a sore spot for Republicans, who argue the agency should receive congressionally appropriated funds, giving lawmakers more control over the bureau. The CFPB does have the power to do some of its work even without a director, but other aspects of its mission, most notably its enforcement of consumer protection laws for nonbank financial institutions, require a director.

The two agencies could not continue their work until they have Senate-confirmed officials in place.

"American democracy was born out of a rejection of the monarchies of Western Europe, anchored by limited government and separation of powers," said Cornyn. "We refuse to stand by as this President arrogantly casts aside our Constitution and defies the will of the American people under the guise of defending them.”

The White House has said it strongly disagrees with the court ruling, but has not said yet if it plans to appeal it. The administration has also argued the ruling does nothing to disrupt the NLRB's work.

The CFPB is facing a separate legal challenge. The president re-nominated Cordray for the position earlier this month, but there are no indications Republicans are any more willing to consider the pick now than they were when they blocked his nomination over a year ago.

Alexander said his problem isn't with Cordray but, instead, with the agency's "lack of accountability."

—This story was updated at 3:30 p.m.