Appeals court unanimously rebukes Obama on recess appointments; Update: Most recess appointments no longer legit?

posted at 11:31 am on January 25, 2013 by Ed Morrissey

It took more than a year, but a federal appeals court has finally caught up with Barack Obama and his unilateral declaration of a Congressional recess.  In an embarrassing rebuke, the DC Circuit Court of Appeals ruled that Obama violated the Constitution by making appointments while the Senate considered itself in session:

President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel, a federal appeals court panel ruled Friday.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board.

And as the AP also points out, the decision was unanimous … and embarrassing:

The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions.

The ruling means that a full year of work from the NLRB will go down the tubes, if the Supreme Court upholds this ruling.  The three appointments allowed the panel to form the quorum necessary to pass decisions.  Now every ruling made by the NLRB will be delegitimized as soon as those harmed by the rulings take this into court.  What a mess — and an unnecessary mess at that:

The Obama administration is expected to appeal the decision to the U.S. Supreme Court, but if it stands, it means hundreds of decisions issued by the board over more than a year are invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

It wasn’t just the three appointments to the NLRB, either.  Obama appointed Richard Cordray to head the new Consumer Financial Protection Bureau, whose appointment ran out when the 112th Session of Congress expired earlier this month.  The appointment is being challenged in a separate case but in the same circuit, which means we can expect a similar ruling.  Obama re-nominated Cordray to the post yesterday:

Four days into his second term, President Obama renewed a fight from his first term when he renominated Richard Cordray for head of the Consumer Financial Protection Bureau.

At a news conference this afternoon, Obama announced he was throwing Cordray, the man currently serving in the post thanks to a recess appointment, into the ring as his pick to direct the government-run financial watchdog.

“He can’t stay on the job unless the Senate finally gives him the confirmation he deserves,” Obama said.

The court ruling gives Senate Republicans more than enough political cover to proclaim Cordray’s nomination entirely inappropriate, and start working to block it.  And now that the Senate has resolved the filibuster-reform fight with it largely intact, expect them to use it on Cordray as best as they can.

Update: It’s also worth pointing out what a monumental screw-up this was from a historical perspective.  No one has provoked the legislature (and others) to fight over recess appointments in the courts, which meant that the executive branch had considerable gray area in which to operate, at least politically.  No more, if this precedent stands; future Presidents (and the present one) will now be at the Senate’s mercy.

That’s also true of Obama’s decision to invoke executive privilege on behalf of Eric Holder in Operation Fast & Furious.  It will be interesting to see whether the White House wants to press its luck on that score after losing so badly on the recess appointments.

Update II: To underscore the point I was making in the previous update, take a look at pages 17-18 in the opinion.  Not only did Obama unconstitutionally arrogate to himself the ability to determine when the Senate is in session, the court now holds that the appointment power exists only in the formal Recess between sessions:

The appointment may be made in “the Recess,” but it  ends  at  the  end  of  the  next  “Session.”  The  natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.”  Either the Senate is in session, or it is in the recess.  If it has broken for three days within an ongoing session, it is not in “the Recess.”

It is universally accepted that “Session” here refers to the  usually two  or  sometimes  three sessions  per  Congress. Therefore,  “the Recess” should be taken to mean only times when the Senate is not in one of those sessions.

Not only that, but the court also ruled that the vacancies had to arise during The Recess as well (page 23):

To avoid government paralysis in those long periods when senators were unable to provide  advice and  consent,  the  Framers  established  the “auxiliary” method of recess appointments.  But they put strict limits  on this  method,  requiring that  the  relevant  vacancies happen during “the Recess.”  It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary”  ability to make recess  appointments  could  easily swallow  the  “general”  route  of  advice and  consent.  The President could simply wait until the Senate took an intrasession break  to make  appointments,  and  thus  “advice  and  consent” would hardly restrain his appointment choices at all.

Wow.  If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.


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