Obama’s recess appointments to the NLRB are struck down by the DC Circuit
By Debra Cassens Weiss
Jan 25, 2013, 10:45 am CST
A federal appeals court has held that President Obama violated the Constitution when he made three recess appointments to the National Labor Relations Board during the holidays more than a year ago.
The U.S. Court of Appeals for the D.C. Circuit ruled today (PDF) that Obama's Jan. 4, 2012, appointments did not satisfy the mandates of the Constitution's recess appointments clause, which gives the president power to fill “vacancies that may happen during the Recess of the Senate.”
The court cited two reasons. First, the clause's reference to "the recess" does not apply to breaks in the Senate’s business when it is otherwise in a continuing session, the court said. "The appointments structure would have been turned upside down if the president could make appointments any time the Senate so much as broke for lunch," the appeals court said.
Second, the appeals court said, the clause only permits recess appointments when they "happen" during the intersession recess, not when they happen to exist during the recess.
The opinion casts doubt on the recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, which is being challenged in a separate case, the Associated Press reports.
The Justice Department's Office of Legal Counsel had argued the president had the discretion to determine when the Senate is in recess, but the D.C. Circuit rejected that interpretation. "This will not do," the appeals court said. "Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers."
The appeals court relied on the wording of the clause and constitutional history to support its interpretation. "At the time of the Constitution, intersession recesses were regularly six to nine months," the court said, "and senators did not have the luxury of catching the next flight to Washington." The Framers established the recess appointments procedure to avoid government paralysis in those long periods, the court said. Allowing such appointments in shorter intrasession breaks "could easily swallow the 'general' route of advice and consent," the court said.
Miguel Estrada of Gibson, Dunn & Crutcher represented 42 Republican senators who filed an amicus brief in the case. The decision “is a major milestone in safeguarding the separation of powers,” he said in a statement.
According to AP, the decision is likely to be appealed to the U.S. Supreme Court. “But if it stands,” the story says, “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.”
ABAJournal.com: "DOJ Legal Opinion Backs Obama’s Recess Appointment Power During ‘Pro Forma’ Sessions"