The Washington Post reported on Friday the 25th that a federal appeals court 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 Obama. The judges ruled that the appointments he made to the National Labor Relations Board (NLRB) are illegal, and hence the five member board did not have a quorum to operate.
Even though Obama’s attorneys argued that the Senate was convening every three days at the time Obama made the “recess” appointments, the pro forma sessions didn’t allow any business, and nearly every Senator was absent from the chamber, signaling to Obama that the Senate wasn’t able to perform its confirmation duties and therefore they should be considered essentially in recess. Unfortunately that didn’t cut-it with the court.
The judges ruled 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 and Obama had erred when he said he could claim the power to determine when he could make appointments.
The Constitution reads: “The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
The problem for past and present presidents is the word “recess.” In legislative-speak it can have several meanings such as a short break during the day, or a break of days or weeks for holidays or the end of the yearly session. Obama used the ill defined legislative-speak with his own distorted view of his presidential powers to by-pass the Senate to appoint his radical union sympathizers to the National Relations Board.
The Court said that by “Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. . . 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 in session. In modern times, when Congress is almost always capable of meeting, the recess powers should be more circumscribed.” Presidential powers should only apply after congress has adjourned a session permanently, which in this day and age is at the end of the year.
If the ruling withstands Supreme Court scrutiny, it would dramatically constrain not only Obama’s abuses of the Constitution but future presidents as well.
Last January 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 own definition of “recess.” He also named Richard Cordray to head the new Consumer Financial Protection Bureau, using those same powers.
The ruling invalidates one NLRB decision and over the longer term it could invalidate a year’s worth of decisions by the agency, as well as invalidate the new Consumer Financial Protection Bureau. It could even call into question decisions made by some judges who were given recess appointments.
Noel Franciso, who argued the case for the U.S. Chamber of Commerce and the company that challenged the NLRB appoints said the court’s decision had 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 and warned that if Obama’s stance prevailed, then presidents could ultimately make appointments when the Senate takes its midday recess for weekly party caucus lunches.
“Issues like this — it’s not about protecting Congress from the president and the president from Congress. The Constitution draws these lines ultimately to limit the government to protect the people.”
Michael A. Carrier, a professor at Rutgers University School of Law, said the appeals court panel’s understanding of the Constitution is probably what the Founding Fathers had in mind.
“At the time that the framers drafted the clause, the Senate was a very different place. They would meet for a few months and disband for the rest of the year — six to nine months. And so you really did need the recess appointments clause.”
John Isaacson, director of www.presidential-appointments.org, stated that presidents use their powers to do an end run around the Senate. “Most of the time, it was not because the Senate was out of business, but because the Senate wouldn’t confirm. The whole business since the Second World War is related to the contentiousness between the different parts of the federal government.”
In their ruling the judges said their duty is not to speed up the workings of government, but to hold to constitutional principles. Whatever the Supreme Court decides, the case leaves Mr. Obama with a major constitutional question as he begins his second term.
Senator Mike Johanns (R-Neb.) posted a press release to his website Friday night saying he had sent letters to three appointees — Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin of the National Labor Relations Board, and Richard Cordray, director of the Consumer Financial Protection Bureau — stating that “in light of today’s opinion by the U.S. Court of Appeals for the D.C. Circuit… it is appropriate that you resign effective immediately.”
“Any action taken by the NLRB in the last year should be invalidated,” since the Board would technically have been operating below quorum had Block, Griffin and Flynn’s appointments not been pushed through.
Johann is also asking for a GAO investigation into the actions of recess-appointed officials to determine what rulings and actions now need to be invalidated.
Sen. Bob Corker (R-Tenn.) said on Sunday that the court ruling “could well” invalidate a year’s worth of actions made by President Obama’s appointees to the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB). … “In each case someone might have to challenge those rulings to make them invalid, but certainly that’s what we said at the time – these people were going to be working in vain and the rulings that they come forth with were going to be challenged. That’s turned out to be the case.”