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Court Rejects Obama Recess Appointments

Posted at 1:45 p.m. on Jan. 25

The federal DC Circuit Court of Appeals found that President Obama did not have the authority to make recess appointments to the National Labor Relations Board  and Consumer Financial Protection Bureau in early 2012, the Wall Street Journal reports.

“Mr. Obama claims he acted properly…because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called pro forma sessions.”

“The Obama administration is expected to appeal…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.”

8comments
Judiciary, Social Issues

Headlines

  • FreeStateLarry

    Then he will just make the appointments when the Senate is actually in recess if they don’t get confirmed.

    • Lorehead

      The difficulty there is that the Senate can’t go into recess for more than three days without the consent of the House. Thus, John Boehner would have the ability to block recess appointments.

      • FreeStateLarry

        Good point.

    • ASRKC

      More importantly, the way the decision reads, the recess during which the power of appointment exists is only ‘sine die,’ meaning at the end of a session. For the last century the President has appointed when the Senate took intra-sessional breaks; if this decision stands, the understanding reverts to that of the first century of our republic and recess appointments can happen only when the congressional session ends.

      No President or Congress had pressed the point, but Mr. Obama’s decision to do so may have removed a power from his office permanently.

      • FreeStateLarry

        I see. So can the board remain active while the decision is appealed?

        • ASRKC

          Since the decision is against the government, it must get a stay from the Appeals Court to keep them on the board if it appeals. The board staff is active, but the decisions by the board in the last year are now in question. The government can ask for a hearing before the full appeals court, or it can appeal directly to the Supreme Court. The first option would not be very helpful since, for practical purposes, any decisions now made by the board would be suspect and difficult to enforce. If the SC says no to the appeal (and that should be the second preferred position of the Obama administration, since an Appeals Court decision can, in time, be changed) then the recessed appointed members lose position and their decisions are invalidated. If the the SC says yes, then it can or not stay the effects of the Appeal’s decision, as it choses. If the SC agrees with the Appeals Court in toto, the Presidential offices powers have been dealt a severe blow. If the SC hears and agrees that the President was too aggressive in unilaterally declaring whether the rules of the other co-equal branch were invalid (which was what he essentially did) but that the decision goes too far in reverting to the original interpretation of the recess appointment understanding, then the position may revert to the pre January 2012 position, and the members lose their seats, the decisions are abrogated, but the President’s office might still retain the recent understanding of the recess appointment process and power.

          More seriously, is the possible affect on the Cordray case. Since the Consumer Financial agency could only begin operating with a Chair in place, if that appointment is reversed, then all of the actions, fundings, and perhaps, staff appointments, may become invalid. The cost to clean that up might be the Republican’s insistence that the bureau fall under the direct financial control of Congress (currently it is able to commandeer funding from the Fed without Congressional approval.) Indeed, there is minimal oversight, which is why the appointment of the head of the bureau was designed to be and must be subject to Senatorial consent – not recess appointment.

          • FreeStateLarry

            I have come to understand the technicalities of it. It was pretty obviously politically-motivated (not to say that this is unique) and intended to cripple a Democratic president. The Republicans exploited a technicality and gave a very conservative court an opening to deal a political blow, nothing more. If the Republicans in the Senate were interested in actual governing, I would consider this a constitutional case and their side of it would be given merit. It’s a shame our constitution relies solely on input legitimacy.

          • ASRKC

            The NLRB nominees had been made just a few weeks before the attempted ‘recess’ appointments; so recent, in fact, that there had not even been time to hold hearings. IMO, this was an overplay by the White House.

            Cordray had been in limbo for a while, but might very well have been confirmed with Republican support except for the issue of the isolation of the new bureau from Congressional oversight. Both sides have mishandled this case.

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