Federal Judges Question Obama’s Recess Appointments


Do you remember when President Obama made appointments to the National Labor Relations Board while the Senate was still technically in session? Well, a lawsuit was filed and the case came before a federal appeals court today. The judges questioned not only the NLRB appointments, but all of Obama’s recess appointments.

The case involves a challenge to Mr. Obama’s recess appointments to the National Labor Relations Board in early January — during a time when the Senate was holding pro forma sessions every three days, specifically for the purposes of denying him the chance to make those appointments.

Mr. Obama argued that since the full Senate wasn’t actually meeting regularly, lawmakers were technically in an intra-session “recess” and he could use his constitutional power to make appointments not needing the chamber’s consent. But two judges on the U.S. Court of Appeals for the D.C. Circuit questioned not only that move, but every recess appointment made other than during a traditional inter-session recesses that close out each year.

“Once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” said Judge Thomas B. Griffith.

He was joined in his pointed questioning by Chief Judge David B. Sentelle, who said the clause in the Constitution giving presidents recess appointment powers refers to “the recess,” which he said suggests the one at the end of each year, not the breaks Congress regularly takes for holidays, weekends or other reasons.

If the court were to rule that way, it would upset the balance that has been maintained over decades, and would conflict with another appeals court’s precedent — though that didn’t bother Judge Sentelle.

“Forget about a century of precedent — go back to the Constitution,” he told Beth Brinkmann, the Justice Department lawyer who argued the case for the Obama administration. (Read More)

Well, Obama isn’t known for following the Constitution, which he sees as an impediment to implementing his progressive agenda.

The Wall Street Journal had a related op-ed this morning.

Noel Canning v. NLRB, a Washington state Pepsi bottler claims that the NLRB lacked a three-member quorum when it decided a labor case because the recess appointments were illegitimate. In order for the President to make a recess appointment, the Senate must adjourn, and under Article I, Section 5 of the Constitution neither house of Congress can adjourn for more than three days without the other’s permission.

On January 4, the day Mr. Obama packed the NLRB, Congress considered itself to be in session. But the White House claimed the pro forma session didn’t count because the Senate wasn’t really available to do confirmations except by unanimous consent.

The Senate happens to do much of its business by unanimous consent, including confirmations of executive branch employees and even federal judges, including (then attorney and now Chief Justice) John Roberts’s 2003 confirmation to the D.C. Circuit. Mr. Obama himself has signed legislation passed during pro forma sessions, including the Senate’s 2011 payroll tax extender and the Airport and Airway Extension Act.

When the Administration made its NLRB appointments on January 4, the Senate had convened the day before for the first day of its new session, the January 3 session mandated by the Constitution. But here’s a puzzler: Recess appointments last until the end of the next session of Congress. If the Administration thinks the pro forma sessions weren’t real, why did it make the appointments after the Senate gaveled in a new session in January, thus giving them an extra year on their terms?

There’s ample precedent here: In New Process Steel v. NLRB, the Supreme Court ruled in 2010 that three members were needed for a quorum. The decision invalidated the two-person judgments, and some 600 complaints that had come before the NLRB had to be reheard. In the Pepsi case, without Mr. Obama’s illegal appointments, the board would not have had a quorum even to hear the complaint. (Read More)

If the court rules against Obama, what do to you think will he do?