Court rules Obama’s appointments unconstitutional

Daily News Article   —   Posted on January 29, 2013

The court found that the Senate was not truly in recess, for the purpose of a recess appointment, when Obama in January 2012 installed three nominees to the National Labor Relations Board [NLRB].

The nominees were facing stiff Republican opposition, and the appointments caused an uproar at the time. Republicans argued that Obama undercut the Senate’s power to confirm nominees because although most of its members were out of town, the Senate had not formally adjourned.

In a surprisingly broad ruling, the three-judge panel rejected not only the NLRB appointments but any made while the Senate is in session but on a break. That could limit recess appointments to only a few weeks a year.

The U.S. Court of Appeals for the District of Columbia Circuit also ruled that recess appointments could only be used for positions that become vacant while the Senate is in recess.

“If the decision stands, it would be a significant reduction of the president’s recess power,” said John Elwood, a Washington lawyer who was deputy assistant attorney general in the Office of Legal Counsel from 2005 through 2009.

“This is a big, big decision for executive power,” Elwood said. “It is one of the most important decisions in decades.”

More immediately, the ruling casts doubt on the ability of the NLRB, an independent agency that oversees labor disputes, to conduct its business if it does not have enough members. Its recent rulings may also be vulnerable to challenge.

The ruling also throws into question the legality of the appointment of Richard Cordray, the head of the new Consumer Financial Protection Bureau. Obama used the same type of recess appointment to install Cordray; his appointment was challenged in a separate lawsuit.

But the ruling’s most profound impact may be its threat to the now-standard practice of presidents ramming through nominees that otherwise would get bogged down in the Senate, often because of unrelated political fights.

White House spokesman Jay Carney called the ruling “novel and unprecedented” and said it contradicted 150 years of practice by both Democratic and Republican administrations.

The Justice Department said it is considering its options to appeal. Legal experts expect the administration will challenge the ruling, and the case could go to the Supreme Court.

Republican lawmakers, who had joined the legal challenge to the NLRB appointments, jumped on the ruling as a vindication of their view that the administration had overreached. …

The suit started as a routine dispute between soda bottling company Noel Canning and the labor board, but developed into a high-profile appeal with the help of the U.S. Chamber of Commerce and Senate Republicans.

The case was seen as a test of the president’s ability to bypass a Senate vote on nominees. The Constitution allows the Senate to block nominees, and both Democratic and Republican presidents have used recess appointments as a way around this for decades.

When Obama made the NLRB appointments, the Senate was not officially in recess. It continued to meet every few days for minutes at a time with few senators present.

The court’s decision, issued by a panel of judges who had been appointed by Republicans, hinged on what constitutes a “recess” and whether it includes short breaks while the Senate is still technically in session.

Presidents have often used these intra-session recess appointments. Ronald Reagan, for example, made 36 such appointments, and Bill Clinton made 39, according to data from the Congressional Research Service.

“Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception,” the ruling said about [President Obama’s] NLRB appointments of Sharon Block, Richard Griffin and Terence Flynn.

It said the president could not have “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.” …

NLRB Chairman Mark Gaston Pearce said the ruling would not deter the board from getting on with its work. However, the NLRB’s recent and future decisions are now on legally shaky ground because without the three appointments, the board lacks a quorum. …

(Reporting By Aruna Viswanatha in Washington and Terry Baynes in New York, with additional reporting by Emily Stephenson, Joan Biskupic, and Diane Bartz; Editing by Karey Wutkowski and Doina Chiacu)

Background

ON THE COURT'S RULING:

• Whatever the Supreme Court decides, the case leaves Mr. Obama with a major constitutional question as he begins his second term.
• The relevant section of the Constitution reads: "The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
• The ruling has two main holdings. The first is that the president's recess powers were designed to fill vacancies during what the Constitution calls "the recess." The judges said the singular article "the" must refer only to the break after Congress adjourns sine die, which in modern times means when it goes home at the end of a year.
• The second holding is that the power applies only to vacancies that arise during that recess.
• For decades, presidents have thought that they could use their recess powers for any vacancies no matter when they occur, and have thought they could make appointments as long as Congress recesses for as little as three days.
• Michael A. Carrier, a professor at Rutgers University School of Law, said the appeals court panel's understanding of the Constitution is probably what the Founding Fathers had in mind.
• "At the time that the framers drafted the clause, the Senate was a very different place. They would meet for a few months and disband for the rest of the year — six to nine months. And so you really did need the recess appointments clause," he said.
• Now, with the Senate meeting almost year-round and members able to return to Washington at a moment's notice, the original intent has become less important.
  Instead, said John Isaacson, director of www.presidential-appointments.org, presidents now use their powers to do an end run around the Senate.
• "Most of the time, it was not because the Senate was out of business, but because the Senate wouldn't confirm," Mr. Isaacson said. "The whole business since the Second World War is related to the contentiousness between the different parts of the federal government." (from washingtontimes.com/news/2013/jan/28/ruling-puts-presidential-power-at-risk)

ON RECESS APPOINTMENTS:

• Once rare, recess appointments became more common in the late 1970s as a way to bypass the confirmation process, which senators have used increasingly to block nominees.
• Recent presidents pushed the boundaries. George W. Bush took the unusual step of filling a judgeship during a recess.
• Democratic Senator Ted Kennedy previously challenged the intra-session recess appointment of William Pryor to the 11th U.S. Circuit Court of Appeals in 2004 by George W. Bush. The 11th Circuit upheld the right of the president to make the recess appointment, finding the term "recess" in the Constitution ambiguous. That decision conflicts with the D.C. Circuit's decision on Friday.
• Although Friday's decision did not touch on Cordray, his appointment to the CFPB was challenged in a separate lawsuit brought in June by the State National Bank of Big Spring, Texas, and other institutions.
• That suit presented a similar argument that the recess appointment was invalid because the Senate was technically still in session.
• Cordray's appointment followed months of rancorous debate over the new consumer bureau, which was created by the 2010 Dodd-Frank financial oversight law to police markets for products such as credit cards and home loans.
• Obama on Thursday renominated Cordray to head the CFPB, but it is unclear how long the confirmation process will take.
• Even though the new ruling doesn't deal with the consumer agency, it could call into question supervisory actions and regulations it has taken. "The CFPB world has been turned upside down," said financial services lawyer Richard Gottlieb of the Dykema law firm. (from the article above)