Obama wants SCOTUS to uphold controversial recess appointments

posted at 9:21 pm on April 25, 2013 by Mary Katharine Ham

Remember, in 2012, when President Obama pretty much declared the Senate in recess, even though they weren’t, so that he could make some recess appointments? The action threw the appointment of, most notably, controversial Consumer Financial Protection Bureau head Richard Cordray into doubt. In January of 2013, the D.C. Circuit court unanimously decided a trio of National Labor Relations Board appointments Obama made at that time were unconstitutional.

As Ed noted in January:

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…

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.

The Obama administration has now officially asked the Supreme Court to back them on these appointments:

A major Supreme Court battle over presidential powers loomed closer Thursday as the Obama administration asked the justices to uphold appointments made without the Senate’s consent.

The long-expected Justice Department request is almost certain to make its way on to the court’s calendar later this year or in 2014, since lower courts have issued split decisions on the issue.

The move has been expected since shortly after the lower court’s ruling. Reason‘s Damon Root offers the meat of the administration’s brief:

In a brief submitted today, the Obama administration has asked the U.S. Supreme Court to overturn that decision and place its stamp of approval on Obama’s use of executive power. “The court of appeals’ decision would dramatically curtail the scope of the President’s authority under the Recess Appointments Clause,” the administration’s brief states. “It would deem invalid hundreds of recess appointments made by Presidents since early in the Nation’s history. It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.”

The Supreme Court is likely to take the case. In 2004, the U.S. Court of Appeals for the 11th Circuit upheld President George W. Bush’s similar use of the recess appointment power, meaning the federal circuits are split on this major constitutional issue. In addition, as the Obama administration observes, a year’s worth of NLRB actions have been thrown into doubt by the D.C. Circuit. It won’t be easy for the justices to avoid entering the thicket on this one.


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