January 25, 2013

“Obama recess appointments unconstitutional, court”

Washington Times:

In a case freighted with major constitutional implications, a federal appeals court on Friday 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 Mr. Obama. The judges ruled that the appointments Mr. Obama made to the National Labor Relations Board are illegal, and the board no longer has a quorum to operate.

But the ruling has even broader constitutional significance, with the judges arguing that the president’s recess appointment powers don’t apply to “intrasession” appointments — those made when Congress has left town for a few days or weeks.

The judges signaled the power only applies after Congress has adjourned sine die, which is a legislative term of art that signals the end to a long work period. In modern times, it means the president could only use his powers when Congress quits business at the end of a year.

“The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments,” the judges wrote.

“Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”

The case is likely to end up before the Supreme Court, and it turns on the definition of what the Constitution means when it says “recess.”

Well, then I guess let’s just hope it doesn’t come to mean “tax.”  Or else, all bets are off.

Additional thoughts here.

(h/t JHo)

Posted by Jeff G. @ 11:00am

Comments (14)

  1. I doubt Obama sees any court that rules against him as an impediment. After all, he won.

  2. Hillary’s shrillness before the Senate is not playing quite as well as well as hoped.

    (Seen on Insty)


  3. The Supreme Court is likely to take this case, which, if it is not reversed, will invalidate all the decisions the NLRB has made going back more than a year and that going forward, there is no quorum for it to decide any cases.

  4. If there was tether-ball involved, it was definitely a recess.

  5. So

    The White House argued that the pro forma sessions — some lasting less than a minute — were a sham.


    The judge rejected arguments from the Justice Department’s Office of Legal Counsel, which claimed the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.

    “Allowing the president to define the scope of his own appointment power would eviscerate the Constitution’s separation of powers,” Sentelle wrote.


    The President argues that the formalities and form of the Constitution are themselves a sham. Which, does he notice that his own office owes its existence to those self-same forms and formalities?

    We may rightly wonder.

  6. Apparently the NRLB will just ignore this. Per Chairman Pearce:
    “The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

    In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”


  7. Apologies for not doing the work to look up all this myself, but has there been a ruling by either this same court or another to stay the effects of the ruling of the three judge panel on the unconstitutionality of the President’s action while some appeal is undertaken, should such an appeal be made? That is, without such a stay, wouldn’t the order of the court take immediate force?

  8. I haven’t looked yet, sdferr, but the usual rule is that the losing party must affirmatively ask for a stay pending appeal. Which they will do. Not a guarantee that they will get it from the DC Circuit.

  9. Thanks for that answer RI. One more question, if I may? If the Gov’t asks for an en banc hearing, is the District Court obligated to give it to them, or can that Court refuse, deferring the matter to the Supreme Court?

  10. Ummm . . . I notice the awful ambiguity in my question, and an unnecessary ambiguity at that. To correct, I mean, if the DoJ representing the NLRB requests an en banc hearing, etc.

  11. I see the spin has already begun about how other presidents made recess appointments.

    The difference being, of course, that those other appointments were made while the Senate was actually IN RECESS, not while they were on (e.g.) lunch break.

  12. Well, Libby, two can play that game. If I were a company, I would ignore the NLRB until this is resolved.

    And of course, this has other implications. For example, local police could arrest NLRB minions who attempted enforcement as being guilty of assault, kidnapping, etc. And using lethal force of your own on them while they were trying would be no different than defending yourself against any other non-government thug.

  13. Sdferr, I’m gonna punt until I get back to the office. See if en banc is condition precedent to appeal.

  14. Cool, and thanks RI; no ‘urryies, gov’n’r.