Court says Obama recess appointments invalid

Court says Obama recess appointments invalid

By Aruna Viswanatha
Fri Jan 25, 2013 3:04pm EST

WASHINGTON (Reuters) - A federal appeals court ruled on Friday that President Barack Obama violated the U.S. Constitution when he used recess appointments to fill a labor board, a decision that could curtail the president's options in filling vacancies.

Obama, frustrated by Republican opposition to his nominees, made the three "recess" appointments to the National Labor Relations Board in January 2012, while the Senate was on one of its many recesses but not formally adjourned for the year.

"Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception," said the ruling by a three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

The panel said the Senate was not truly in recess when Obama made his appointments.

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.

Carney would not say whether the White House would appeal the decision. He referred questions to the Justice Department, which did not immediately respond to request for comment.

It was unclear what immediate impact the ruling will have on the board and the decisions it has issued with the new members.

In the near-term, 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. It also could make its recent rulings vulnerable to challenge.

The ruling also throws into question 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, but his appointment was challenged in a separate lawsuit.

In the longer term, the court's ruling could diminish the U.S. president's ability to make recess appointments, because it appeared to narrow the definition of a 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."

Republican lawmakers, who had joined the legal challenge to the NLRB appointments, jumped on the ruling as an indication of the administration's overreach.

"The D.C. Circuit Court today reaffirmed that the Constitution is not an inconvenience but the law of the land," Mitch McConnell, the top Republican in the Senate, said in a statement.

Nancy Cleeland, a spokeswoman for the NLRB, had no immediate comment. CFPB representatives did not respond to requests for comment on what the ruling means for the agency.

A TEST OF POWERS

The suit started as a routine dispute between soda bottling company Noel Canning and the labor board, but lawyers for Senate Republicans seized on the suit as a chance to challenge the appointments.

The case was seen as a test of the president's ability to bypass a Senate vote on nominees by making appointments during a recess. The Constitution allows the Senate to block nominees and both Democratic and Republican president have used recess appointments as a way around this in recent years.

When Obama made the NLRB appointments, the Senate was not officially in recess, meeting every few days for minutes at a time but accomplishing no work and with few senators present. Obama's nominees had remained on the Senate calendar, blocked by Republicans from up or down votes on their confirmation.

The court's decision hinged on what constitutes a "recess" and whether it includes short breaks while the Senate is still technically in session.

"An interpretation of ‘the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances ... giving the President free rein to appoint his desired nominees at any time he pleases," said the panel of three judges, all of whom were appointed by Republicans. "This cannot be the law."

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 rare step of filling a judgeship during a recess, while Obama appointed the NLRB members while the Senate was holding "skeleton" sessions set up to keep it from going into recess.

CORDRAY IN DOUBT

Cordray's appointment 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 not in recess.

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.

http://www.reuters.com/article/2013/01/25/us-usa-obama-appointments-idUSBRE90O0TG20130125

Obama recess appointments unconstitutional

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"Issues like this — it's not about protecting the Congress from the president and the president from Congress," Mr. Francisco said. "The Constitution draws these lines ultimately to limit the government to protect the people."

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In a case freighted with major constitutional implications, a federal appeals court on Friday overturned President Obama's controversial recess appointments from last year, ruling he abused his powers and acted when the Senate was not actually in a recess.

The three-judge panel's ruling is a major blow to Mr. Obama. The judges ruled that the appointments he made to the National Labor Relations Board are illegal, and hence the five-person board did not have a quorum to operate.
But the ruling has even broader constitutional significance, with the judges arguing that the president's recess appointment powers don't apply to "intra-session" appointments — those made when Congress has left town for a few days or weeks. They said Mr. Obama erred when he said he could claim the power to determine when he could make appointments.

"Allowing the president to define the scope of his own appointments power would eviscerate the Constitution's separation of powers," the judges said in their opinion.

The judges said presidents' recess powers only apply after Congress has adjourned a session permanently, which in modern times usually means only at the end of a year. If the ruling withstands Supreme Court scrutiny, it would dramatically constrain presidents in the future.

And the court ruled that the only vacancies that the president can use his powers on are ones that arise when the Senate is in one of those end-of-session breaks. That would all but eliminate the list of positions the president could fill with his recess powers.

White House dissent

White House press secretary Jay Carney called the ruling "novel and unprecedented," and said it contradicts 150 years of practice by presidents of both parties.

"We respectfully but strongly disagree with the rulings," he said.

But Noel Francisco, a lawyer at Jones Day who argued the case for the U.S. Chamber of Commerce and the company that challenged the NLRB appointments, said the court had returned to the Constitution's intent, which was to make the recess appointment an emergency power for use only when Congress was not available.

"Issues like this — it's not about protecting the Congress from the president and the president from Congress," Mr. Francisco said. "The Constitution draws these lines ultimately to limit the government to protect the people."

In their ruling the judges said their duty is not to speed up the workings of government, but to hold to constitutional principles.

"If some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands," the judges wrote.

The judges said the recess power was created for a time when Congress met only a few months out of the year, and was designed for the president to fill vacancies during the long periods when Congress was not meeting. In modern times, when Congress is almost always capable of meeting, the recess powers should be more circumscribed.

In the short term, the ruling invalidates one NLRB decision. But over the longer term it could invalidate a year's worth of decisions by the independent agency, could undercut Mr. Obama's new consumer watchdog agency set up in the 2010 Wall Street reform law, and could even call into question decisions made by some judges who were given recess appointments.

Defining recess

The case is likely to end up before the Supreme Court, and will likely on the definition of what the Constitution means when it says "recess."

Last January Mr. Obama named union lawyer Richard Griffin and Labor Department official Sharon Block, both Democrats, and a Republican, NLRB lawyer Terence Flynn, to the labor board using his recess powers. He also named Richard Cordray to head the new Consumer Financial Protection Bureau, using those same powers.

Noel Canning, a bottling company, sued the NLRB, arguing that a rule issued by the new board was illegal since the recess appointments were unconstitutional. Senate Republicans, led by Minority Leader Mitch McConnell, joined in the suit.

The appeals court panel, which sits in Washington, D.C., was skeptical of Mr. Obama's case during oral argument in early December, with Chief Judge David B. Sentelle and Judge Thomas B. Griffith peppering the administration lawyers with questions.

The Constitution gives the president the power to nominate judges and executive branch officials, but the Senate must vote to confirm them before they take office. Article II, Section 2 of the Constitution grants the president powers "to fill up all vacancies that may happen during the recess of the Senate."

Those powers have produced centuries of give-and-take, with senators regularly slow-walking nominees and the White House looking for ways to get its nominees in place — including the recess appointment.

Mr. Obama, though, appeared to break new ground by acting at a time when the Senate was meeting every third day, specifically to deny him the chance to make appointments.

The problem is the word "recess" has several meanings in legislative-speak. It can mean a short break during the day, it can mean a break of days or weeks for a holiday, or it can mean the end of a yearly session.

The president argued that even though the Senate was convening every three days, the pro forma sessions didn't allow any business, and nearly every senator was absent from the chamber, signaling that the Senate wasn't able to perform its confirmation duties and should be considered essentially in recess.

His opponents had warned that if Mr. Obama's stance prevailed, then presidents could make appointments when the Senate takes its midday recess for weekly party caucus lunches.

The judges on Friday ruled that the only clear bright line is when the Senate recesses at the end of the year.

"The dearth of intra-session 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," the judges wrote. "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."

Victor K. Williams, an assistant professor at Catholic University School of Law who filed briefs arguing that the court should reject the case as a political question between Congress and the president, called the judges' ruling "historically wrong."

"This panel of the D.C. circuit has accomplished what Minority Leader Mitch McConnell failed to do. Minority Leader McConnell said that his No. 1 objective was defeating Barack Obama and Barack Obama's attempt to govern. This D.C. circuit panel has been successful where McConnell failed. they have really, effectively challenges the president's ability to govern," Mr. Williams said.

The judges' ruling puts them at odds with several other federal appeals courts that have ruled the other way. And another case is making its way through the D.C. circuit and could be heard by another three-judge panel.

Mr. Williams said the Justice Department faces an interesting choice: It could allow those other cases to work their way through the rest of the courts, or it could appeal immediately to the Supreme Court.

The administration could also ask the full D.C. circuit to re-hear the case.

Read more: Obama recess appointments unconstitutional - Washington Times