Keeping Regulators Accountable

Senator Mike Johanns

 

As I travel throughout Nebraska, I consistently hear from small business owners in a variety of industries about the seemingly endless string of governmental red tape preventing business expansion and job growth in America. With new regulations come new compliance costs and sometimes inefficient operational changes. Often, federal agencies propose rules without a definitive timeframe, which raises unanswered questions for folks who want to comply with important standards, but are given little detail about how and when they will be required to act. In other instances, federal agencies try to impose overreaching new regulations with little or no discussion and lightning speed. All of this decreases productivity and the possibility for new jobs in a market struggling to regain momentum.
Some regulations are necessary to ensure a fair market and safe workplace, but when federal agencies go too far, they place unnecessary burdens on those who create jobs and grow the economy. Many job creators will tell you they must already sift through mountains of new and pending regulations. The last thing they need is government officials issuing more binding decisions without the proper authority. But according to two federal circuit courts, that’s exactly what’s happening at the National Labor Relations Board (NLRB), which issues decisions related to businesses’ labor practices.
In January, the U.S. District Court of Appeals for the D.C. Circuit unanimously ruled that President Obama’s attempt in 2012 to fill vacancies on the NLRB without the advice and consent of the Senate was unconstitutional, stating that, “allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.” The Administration and the NLRB ignored the Court’s decision, saying they would continue issuing rules and decisions that affect businesses across the nation. Last month, the 3rd U.S. Circuit Court of Appeals agreed with the January ruling in a different case.
It’s clear to me that if the NLRB’s unconstitutional appointees lack the authority to serve, then they lack also the authority to issue new requirements impacting business productivity and job creation. As the Administration and NLRB continue to ignore this reality, the Board’s ongoing decisions will further expand a cloud of uncertainty for American businesses and job creators.
Last week, I joined my fellow Senate Republicans in asking the Supreme Court to weigh in on both the legitimacy of the non-recess appointees and all of the decisions they’ve issued. We submitted an amicus brief detailing the constitutional questions raised by the President’s so-called appointments, and the Board’s actions, which should be invalidated if the Supreme Court agrees with the Circuit Courts’ decisions. It’s time we provide clarity to businesses and job creators so they don’t waste time and resources complying with decisions made by individuals who lacked the very authority to issue rulings.
In addition, I have sent multiple letters to the so-called appointees advising them to step aside following both Circuit Courts’ rulings. The sooner we get this sorted out, the sooner businesses and their employees will have greater certainty so they can continue growing the economy and creating more jobs, which is exactly what this country needs, instead of expending time and money complying with illegitimate regulations.