Appeals Court Spurns Obama’s UnConstitutional Recess Appointments

May 20, 2013 by Ben Bullard

Just as the Obama Administration’s public reputation is at its lowest ebb over unConstitutional surveillance and discriminatory targeting of political enemies by government agencies with unfettered power comes a decision in which an appeals court ruled the President himself violated the Constitution when he made appointments to the National Labor Relations Board (NLRB) while the Senate was taking a break.

The U.S. Court of Appeals for the 3rd Circuit in Philadelphia handed down the 2-1 decision last Thursday, invalidating not only the President’s appointment of Craig Becker to the NLRB in March 2010 — when the Senate was in a two-week intrasession recess — but also some of the NLRB’s subsequent actions in which he participated.

The Senate had blocked Becker’s nomination to the same position only a month earlier. In all, Obama filled 15 vacancies by recess appointment during the March 2010 break.

Last week’s ruling is similar to one made against Obama in January of this year by the U.S. Court of Appeals for the District of Columbia Circuit, which invalidated the President’s appointments of Sharon Block, Terence Flynn and Richard Griffin to the NLRB at a time when the Senate was adjourned for Christmas break. The President has appealed that ruling to the U.S. Supreme Court.

The NLRB had argued Obama’s position that the definition of “recess,” as stated in in Article II, Section 2 of the Constitution (the “Recess Appointments Clause”), would allow the President to unilaterally make appointments that normally require Senate ratification, so long as the Senate essentially wasn’t assembled — and, therefore, not available to conduct business.

But the court recognized the absurdity of that argument, noting:
And therein lies the implausibility of the [NLRB’s] unavailable-for-business definition. As explained above, the Board argues that a recess occurs any time members of the Senate do not have a duty to attend, the Senate chamber is empty, and the Senate is unavailable to receive communications from the president.

…The problem with this definition is that the Senate fulfills these criteria whenever its members leave for the weekend, go home for the evening, or even take a break for lunch. In each of these instances, the senators have no duty to attend, the Senate chamber is empty, and the body cannot receive messages from the president.

Defining recess in this way would eviscerate the divided-powers framework the two Appointments Clauses establish. If the Senate refused to confirm a president‘s nominees, then the president could circumvent the Senate‘s constitutional role simply by waiting until senators go home for the evening.

Senate Minority Leader Mitch McConnell (R-Ky.), who’s been among the President’s most vocal critics over last week’s multiple scandals involving discrimination and abuse of power by the Executive Branch, told FOX News the two rulings illustrate the egregiousness of what he called an “unprecedented power grab” by the President.