Court to Obama Admin: Actually, Those Recess Appointments Were Unconstitutional

Posted: Jan 25, 2013 12:25 PM

The DC Circuit Court of Appeals today unanimously slapped down the controversial “recess” appointments President Obama made to the National Labor Relations Board way back in early January of 2012, in what the Associated Press rightly calls an “embarrassing setback.” Indeed, if the Supreme Court upholds the decision, it very well may nullify everything the board has done since the appointments, as it won’t have actually had the quorum of three members required to issue regulations. Ouch.

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 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.

Recall, Senate Republicans gaveled in and out of pro forma sessions during the Christmas season, meaning that technically, the Senate was never fully out of session. The court’s decision helps to define what, exactly, a “recess” is, and definitively establish when a president may unilaterally make appointments, sans the requisite “advice and consent of the Senate.”

Importantly, the decision distinguishes “a recess” from “the Recess” (and the English major in me had a giggle at the court’s reference to Samuel Johnson’s dictionary when defining “the”). Essentially, the president has an extremely narrow window in which to make recess appointments: between formal sessions of Congress. From the decision:

All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings. […]

[The] appointments structure would have been turned upside down if the President could make appointments any time the Senate so much as broke for lunch.

Obama’s use of the recess appointment in such a manner represents one of many instances when he has attempted to skirt congressional authority to achieve his desired outcome.

The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments. Recent Presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.

The Richard Cordray appointment to the Consumer Financial Protection Bureau will likely face the same fate, although it was challenged in a separate case. The federal government will likely appeal the decision to the Supreme Court, so this isn’t the end of the conflict; however, it represents a serious threat to one of Obama’s preferred methods of skirting congressional authority. What’s more, several labor-friendly regulations hang in the balance. In a sense, this is shaping up to be a two-fold loss for Obama: he could very well lose both pieces of his agenda, as well as a method of enacting it.

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