On Friday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that Barack Obama abused his powers when he made recess appointments while the Senate was not officially in recess.
The Washington Times reported that the three judges ruled that the appointments Obama made to the National Labor Relations Board are illegal, meaning the five-person board did not have a quorum to operate.
According to the judges, the president’s power does not apply to what are known as “intrasession” appointments, like those that are made when Congress is gone for a few days.
“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” the judges said.
The only time that a president can make recess appointments, they argued, was after Congress had adjourned a session permanently, which in modern times usually happens at the end of the year.
“If the ruling withstands Supreme Court scrutiny, it would dramatically constrain presidents in the future,” the Times added.
John Elwood of Volokh Conspiracy called the ruling a “very important and very broad holding–indeed, much broader than when it appeared that this case would be resolved on the President’s ability to make recess appointments when the Senate was conducting ‘pro forma’ sessions.”
Elwood said that intrasession recess appointments have been quite common since World War Two. He noted that the appointments of UN Ambassador John Bolton and Judge William H. Pryor, Jr. are “two of the more high-profile intrasession recess appointments in recent years.”
He added that the case could go directly to the Supreme Court if the government feels it must act quickly due of the number of NLRB decisions that are at risk.
White House press secretary Jay Carney called the decision “novel and unprecedented,” saying it contradicts 150 years of practice.
“We respectfully but strongly disagree with the rulings,” he said.
But the judges disagreed, saying in their ruling that their job is to uphold the Constitution, not speed up government action.
“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,” they wrote, noting that the power to make recess appointments was created at a time when Congress met only a few months out of the year.
The Times said that the ruling invalidates one decision made by the five-member board, and could impact others over the long term, including Obama’s new consumer watchdog agency set up by the 2010 Wall Street reform law. It could even call into question decisions made by judges given recess appointments, the Times added.
Republicans lauded the decision, Fox News said.
“Today’s ruling reaffirms that the Constitution is above political party or agenda, despite what the Obama administration seems to think,” said Sen. Orrin Hatch (R-UT). “With this ruling, the D.C. 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.”
Despite the ruling, NLRB Chairman Mark Gaston Pearce said the board will continue to operate “and issue decisions.”
The decision stems from a lawsuit filed by Noel Canning, a bottling company, that sued the NLRB, arguing that a rule issued by the board was illegal because the recess appointments were unconstitutional. Senate Minority Leader Mitch McConnell (R-KY) and 41 other GOP senators joined in the lawsuit last September.
“The president’s decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab,” McConnell said in a statement.
“This decision has the potential to become the new Citizens United to the left, a court decision over which they foam at the mouth and say all sorts of insane things,” added Cornell Law professor William A. Jacobson.
- Obama bypasses Congress, makes recess appointment while Senate in session
- Nancy Pelosi ‘proud’ Obama usurped Constitution to make recess appointments
- Nancy Pelosi opposed recess appointments before she supported them
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