Obama lawyers to argue recess appointments again in March

Reuters News
Posted: Jan 28, 2013 7:55 PM

By David Ingram and Aruna Viswanatha

WASHINGTON (Reuters) - While President Barack Obama considers his next move in one high-stakes legal fight to fill vacant jobs, his lawyers expect to go to court at least twice more to argue for his power to appoint when the U.S. Senate is not meeting.

Federal appeals courts in both Philadelphia and Richmond, Virginia, are likely to hear the issue of recess appointments in March, possibly during the same week.

The hearings will be an opportunity for Obama's lawyers to rebound after a blockbuster ruling on Friday, when a court in Washington, D.C., held that three recess appointments to the National Labor Relations Board (NLRB) were invalid.

Although the three-judge ruling on Friday upturned 190 years of understanding about how a president may fill vacant jobs, it will not take effect immediately.

Under court rules, the Justice Department has 45 days to decide whether to ask the full, eight-judge Washington-based appeals court to reconsider the decision and 90 days to consider an appeal to the U.S. Supreme Court.

A Justice Department spokeswoman had no comment on Monday.

In one of the two other cases, privately held Enterprise Rent-A-Car is questioning the appointments as part of a labor dispute with the International Brotherhood of Teamsters at an airport near Raleigh, North Carolina.

The case is scheduled to be heard in the 4th U.S. Circuit Court of Appeals, based in Richmond, on March 22.

A nursing home in Newark, New Jersey - New Vista Nursing and Rehabilitation LLC - is bringing the other case as part of a nurse unionization fight with a local of the Service Employees International Union.

The 3rd U.S. Circuit Court of Appeals in Philadelphia is tentatively set to hear the issue on March 19.

Both cases have to do with the NLRB.

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 a president's nominees, including the three Obama put forward for the NLRB.


The convergence of the two arguments in the same week in March led a government lawyer to express concern in a court filing because Beth Brinkmann, a senior U.S. Justice Department lawyer, is expected to argue both and wants to ensure they are a few days apart.

Rulings from the two courts would likely come weeks later, potentially adding pressure to the U.S. Supreme Court to sort out what already are divided rulings in the lower courts.

A related case, challenging the recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, is in pre-trial motions in a Washington federal court.

The U.S. Constitution says that presidents have the authority to fill a high-level vacancy without Senate approval if the Senate is in "the recess."

With such vague language, presidents of both major U.S. parties have made increasingly liberal use of the power.

Friday's sweeping ruling from the U.S. Court of Appeals for the District of Columbia Circuit said that the president cannot decide on his own when the Senate is in recess and that "the recess" happens only about once a year, not whenever lawmakers break from Washington for a few weeks.

The decision directly contradicted a 2004 ruling from the federal appeals court in Atlanta.

(Editing by Howard Goller and Eric Beech)