Judges slap down Obama 'recess appointments.' Case headed to Supreme Court?

President Obama's appointments to the labor-relations board were unconstitutional because they bypassed the Senate, a court ruled Friday. Recess appointments have been a tactic of both parties.

By , Staff writer

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    Richard Cordray stands by as President Obama announces Thursday, Jan. 24, that he will renominate Mr. Cordray to lead the Consumer Financial Protection Bureau, a role that he has held for the past year under a recess appointment.
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The partisan battle over “recess appointments” took a new turn Friday when a federal appeals court ruled that President Obama violated the Constitution when he made such appointments to fill vacancies on the National Labor Relations Board (NLRB).

In essence, said the US Court of Appeals for the District of Columbia Circuit, the Senate remained formally in session during the Christmas and New Year's holidays early in 2012, when Mr. Obama appointed three members to the NLRB.

The Senate is supposed to vote on the president's appointments. But at times both Democrat and Republican presidents have tried to get around that requirement by making appointments during a Senate recess. In response, both parties have used a tactic in which the Senate is gaveled into and out of “pro forma” sessions every few days during a break. That's what was going on early last year.

Recommended: How much do you know about the US Constitution? A quiz.

"Either the Senate is in session, or it is in recess," Chief Judge David Sentelle wrote in the 46-page ruling. "If it has broken for three days within an ongoing session, it is not in ‘the Recess’ described in the Constitution."

"Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers," Chief Judge Sentelle wrote. Following Obama’s line of thinking, the judge added, "the president could make appointments any time the Senate so much as broke for lunch."

The issue – and this particular case – are fraught with partisan politics.

The three judges ruling unanimously Friday are Republican appointees.

Obama is pushing the NLRB in a pro-union direction, Republicans contend. Democrats say that’s just a corrective to the pro-business bent of the NLRB under President George W. Bush. The NLRB is an independent agency that conducts elections for labor-union representation and investigates unfair labor practices.

"With this ruling, the DC Circuit has soundly rejected the Obama Administration's flimsy interpretation of the law, and will go a long way toward restoring the constitutional separation of powers," Sen. Orrin Hatch (R) of Utah said in a statement.

“This is a very important decision about the separation of powers,” Carl Tobias, a constitutional law professor at the University of Richmond in Virginia, told the Associated Press. “The court’s reading has limited the president’s ability to counter the obstruction of appointments by a minority in the Senate that has been pretty egregious in the Obama administration.”

It’s now possible that many NLRB rulings made over the past year could be invalidated since, according to the court’s ruling, the board would not have had the requisite three of five members necessary to authorize rulings. The court ruling also calls into question the appointment of Democratic lawyer Richard Cordray to head the new Consumer Financial Protection Bureau, which Obama made the same day as the NLRB appointments last January. The president reappointed Mr. Cordray Thursday.

“Cordray’s appointment allowed the bureau – whose processes and decisions are largely immune from congressional or judicial oversight – to issue a series of regulations on the financial sector that subordinate their profit-seeking goals to the federal government’s political goals,” says The Daily Caller news and opinion website. “Friday’s court decision suggests that Cordray’s appointment may be ruled invalid, likely triggering another set of lawsuits against the bureau’s regulations and rules.”

Friday's decision has cheered opponents of Obama’s appointments and other actions regarding labor and consumer issues.

“The court's decision ... is a victory for independent-minded workers who have received unjust treatment at the hands of the pro-Big Labor NLRB and will hopefully serve as a persuasive example to other federal courts deciding on the validity of Obama's purported recess appointments,” said Mark Mix, president of the National Right to Work Legal Defense Foundation, which had filed an amicus brief in the case, Noel Canning v. NLRB.

“This decision now casts serious doubt on whether the President’s ‘recess’ appointment of Richard Cordray to the Consumer Financial Protection Bureau ... is constitutional,” Senate minority leader Mitch McConnell said in a statement Friday.

At the White House, White House press secretary Jay Carney called the court’s decision “novel and unprecedented.”

“It contradicts 150 years of practice by Democratic and Republican administrations. So we respectfully but strongly disagree with the ruling,” he said.

“Today’s circuit court decision is not only a radical departure from precedent; it ignores the fact that President Obama had no choice but to act,” said Sen. Tom Harkin (D) of Iowa, according to AP. “Throughout his presidency, Republicans have employed unprecedented partisan delay tactics and filibusters to prevent confirmation of nominees to lead the NLRB, thus crippling the board’s legal authority to act.”

Obama is far from alone in relying on recess appointments to conduct administration business absent Senate cooperation.

As president, Mr. Bush made 171 recess appointments during his eight years in the White House. President Clinton made 139. Theodore Roosevelt made 160 such appointments – 193, according to some accounts – in a single day in 1903.

The White House is expected to appeal Friday’s ruling, which could reach the US Supreme Court.

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