Recess appointments by Obama shot down unanimously by DC Court of Appeals.....

http://www.guardian.co.uk/world/2013/jan/25/white-house-court-unconstitutional-appointments

White House condemns court ruling on 'unconstitutional' Obama appointments

Spokesman says ruling heralded by Republicans' lawyers as 'stinging rebuke' to president is 'novel and unprecedented'

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• Chris McGreal
• guardian.co.uk, Friday 25 January 2013 16.28 EST
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The Obama administration is likely to appeal to the Supreme Court over its right to make direct appointments when Congress is in recess. Photograph: Jonathan Ernst/Reuters

Barack Obama breached the constitution when he bypassed Congress to make appointments to a labour relations panel, a federal appeal court ruled on Friday in a decision that was condemned by the White House as "novel and unprecedented".

The judgement, from a three-judge panel of the US court of appeals for the DC circuit and regarding the filling of vacancies at the the National Labor Relations Board (NLRB), represents a significant legal victory forRepublicans and big business. It could also severely restrict the president's use of a constitutional provision that permits him to directly appoint officials without congressional approval.

Successive presidents have used the provision to place hundreds of officials who have been rejected, or are likely to be rejected, by the Senate at confirmation hearings.

But in what lawyers for the Republican congressional delegation called a "stinging rebuke" to Obama, the court narrowed the president's authority considerably by ruling that the constitution only permits him to make those appointments when the vacancy occurs during a recess between individual Congresses, such as occurred earlier this month when a newly elected Congress took office. Any appointment must then be made during the same recess.

"The filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose," the court said.

The ruling struck down the president's appointment of three people to the NLRB a year ago, but if it stands it is likely to have much wider implications.

Anthony Riedel of the National Right to Work Foundation, which is fighting several cases seeking to have NLRB rulings overturned on the grounds that the appointments were invalid, described the ruling as a "game changer".

"What the court did pretty much took a strict constructionist view of the constitution and said that the president cannot make recess appointments unless during the recess in which one Congress turns into the next Congress. It also said that the vacancy must have occurred within that recess," he said. "This is a game changer on a broader scale of how the president has the power to make recess appointments during a recess."

The court decision came in response to a legal challenge by the owners of a soft-drinks bottling plant, after the NLRB ruled against them in a union dispute. The company claimed Obama did not have the power to directly appoint the three officials to the NLRB last year while the Senate was on a 20-day holiday, and said the board's ruling was therefore invalid.

The dispute centres on article two of the constitution, which gives the president "the power to fill up all vacancies that may happen during the recess of the Senate".

Successive administrations have interpreted that as meaning whenever the Senate takes a break, such as during Christmas and summer holidays. Obama has invoked the article 32 times to make recess appointments. His predecessor, George W Bush, used it 99 times. But the court ruled that the framers of the constitution had a different meaning in mind.

At the time the article was written, Congress sat far less frequently, sometimes for less than half of the year.

"There is no reason the framers would have permitted the President to wait until some future intersession recess to make a recess appointment, for the Senate would have been sitting in session during the intervening period and available to consider nominations," the court said on Friday.

Lawyers for the bottling company argued that holidays did not amount to a recess because although senators were away from Washington, the Senate still effectively remained sitting.

"Such short intra-session breaks are not recesses. Otherwise, every weekend, night, or lunch break would be a 'recess' too," they told the court.

The court agreed, and noted that the House of Representatives had already returned to work the day before the appointments, meaning that Congress was in session even if senators were not in attendance.

Republicans joined the legal action, arguing that "the president usurped the Senate's control of its own procedures".

"By appointing officers without the Senate's consent, he took away its right to review and reject his nominations," they said.

The US justice department told the court that the Senate does no work, and does not fulfill its role to provide advice or consent on presidential nominations, when it takes holidays and therefore is not in session.

Democrats in Congress led the way in attempting to block direct presidential appointments during President George Bush senior's administration. They merely adjourned Senate sittings during holiday periods, rather than going into recess.

The Obama administration can be expected to take the case to the Supreme Court.

The American Center for Law and Justice, which represented the House of Representatives speaker, John Boehner, in the case, welcomed the ruling.

"This decision represents a stinging rebuke to the unprecedented and unconstitutional actions of President Obama," said the ACLJ chief counsel, Jay Sekulow.

"This decision is sound and well-reasoned and respects both the constitution and the separation of powers. From the very beginning, no one questioned the President's authority to make recess appointments, but those must occur when the Senate is in recess, which we asserted, and the appeals court concluded, is clearly not the case here. While the Justice Department may decide to appeal this decision to the supreme court, the appeals court decision today sends a strong message rejecting this presidential overreach."

The immediate implications of the ruling for the NLRB are unclear. Riedel said it could potentially invalidate hundreds of board decisions over the past year, and may affect other cases in the pipeline elsewhere in the country including several being handled by his own organisation.

"The NLRB has been handing down very biased decisions in favour of big labor so we're pleased that there's a chance these decisions will now be invalidated because the board has been seen to not have a quorum," he said.

The White House disagreed. "This court decision does not effect this operation, their ability to function," said Jay Carney, Obama's spokesman.

However the judgement could affect other recess appointments, notably that of Richard Cordray, who was put in place by Obama to head the newly-formed consumer financial protection bureau, after he was rejected by Congress. At the time, Boehner accused Obama of "trampling our system of separation of powers".

http://hotair.com/archives/2013/01/25/appeals-court-unanimously-rebukes-obama-on-recess-appointments/

Appeals court unanimously rebukes Obama on recess appointments; Update: Most recess appointments no longer legit?

POSTED AT 11:31 AM ON JANUARY 25, 2013 BY ED MORRISSEY

 

It took more than a year, but a federal appeals court has finally caught up with Barack Obama and his unilateral declaration of a Congressional recess.  In an embarrassing rebuke, the DC Circuit Court of Appeals ruled that Obama violated the Constitution by making appointments while the Senate considered itself in session:

President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel, a federal appeals court panel ruled Friday.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board.

And as the AP also points out, the decision was unanimous … and embarrassing:

The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions.

The ruling means that a full year of work from the NLRB will go down the tubes, if the Supreme Court upholds this ruling.  The three appointments allowed the panel to form the quorum necessary to pass decisions.  Now every ruling made by the NLRB will be delegitimized as soon as those harmed by the rulings take this into court.  What a mess — and an unnecessary mess at that:

The Obama administration is expected to appeal the decision to the U.S. Supreme Court, 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. The board is allowed to issue decisions only when it has at least three sitting members.

It wasn’t just the three appointments to the NLRB, either.  Obama appointed Richard Cordray to head the new Consumer Financial Protection Bureau, whose appointment ran out when the 112th Session of Congress expired earlier this month.  The appointment is being challenged in a separate case but in the same circuit, which means we can expect a similar ruling.  Obama re-nominated Cordray to the postyesterday:

Four days into his second term, President Obama renewed a fight from his first term when he renominated Richard Cordray for head of the Consumer Financial Protection Bureau.

At a news conference this afternoon, Obama announced he was throwing Cordray, the man currently serving in the post thanks to a recess appointment, into the ring as his pick to direct the government-run financial watchdog.

“He can’t stay on the job unless the Senate finally gives him the confirmation he deserves,” Obama said.

The court ruling gives Senate Republicans more than enough political cover to proclaim Cordray’s nomination entirely inappropriate, and start working to block it.  And now that the Senate has resolved the filibuster-reform fight with it largely intact, expect them to use it on Cordray as best as they can.

Update: It’s also worth pointing out what a monumental screw-up this was from a historical perspective.  No one has provoked the legislature (and others) to fight over recess appointments in the courts, which meant that the executive branch had considerable gray area in which to operate, at least politically.  No more, if this precedent stands; future Presidents (and the present one) will now be at the Senate’s mercy.

That’s also true of Obama’s decision to invoke executive privilege on behalf of Eric Holder in Operation Fast & Furious.  It will be interesting to see whether the White House wants to press its luck on that score after losing so badly on the recess appointments.

Update II: To underscore the point I was making in the previous update, take a look at pages 17-18 in the opinion.  Not only did Obama unconstitutionally arrogate to himself the ability to determine when the Senate is in session, the court now holds that the appointment power exists only in the formal Recess between sessions:

The appointment may be made in “the Recess,” but it  ends  at  the  end  of  the  next  “Session.”  The  natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.”  Either the Senate is in session, or it is in the recess.  If it has broken for three days within an ongoing session, it is not in “the Recess.”

It is universally accepted that “Session” here refers to the  usually two  or  sometimes  three sessions  per  Congress. Therefore,  “the Recess” should be taken to mean only times when the Senate is not in one of those sessions.

Not only that, but the court also ruled that the vacancies had to arise during The Recess as well (page 23):

To avoid government paralysis in those long periods when senators were unable to provide  advice and  consent,  the  Framers  established  the “auxiliary” method of recess appointments.  But they put strict limits  on this  method,  requiring that  the  relevant  vacancies happen during “the Recess.”  It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary”  ability to make recess  appointments  could  easily swallow  the  “general”  route  of  advice and  consent.  The President could simply wait until the Senate took an intrasession break  to make  appointments,  and  thus  “advice  and  consent” would hardly restrain his appointment choices at all.

Wow.  If this stands, the recess appointment will all but disappear — and future Presidents can thank Obama for screwing that up for them.