Appeals court rules Obama recess appointments unconstitutional

By Tom Shoop and Charles S. Clark

January 25, 2013

This article has been updated.

President Obama's three recess appointments to the National Labor Relations Board last year violated the Constitution, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that Obama's move, which came at a time when the Senate was away for the holidays, was improper because senators made a move to technically stay in session by conducting brief "pro forma" sessions while on their break.

The ruling also called into question Obama's appointment of Richard Cordray to head the Consumer Financial Protection Bureau, the Associated Press reported, because it was made under similar circumstances. 

At the time of Cordray's appointment in January 2012, Obama maintained that he was qualified, but was denied an up-or-down vote because a minority of senators didn't agree with the law that set up the new bureau in the first place. The administration argued that the Senate's maneuver to gavel in briefly every few days did not constitute a legal session. At the time, GOP leaders harshly criticized his actions.  

"President Obama, in an unprecedented move, has arrogantly circumvented the American people," Senate Minority Leader Mitch McConnell, R-Ky., said at the time. "This recess appointment represents a sharp departure from a long-standing precedent that has limited the president to recess appointments only when the Senate is in a recess of 10 days or longer."

The White House criticized the court's ruling in the NLRB case. "The decision is novel and unprecedented," said spokesman Jay Carney at a press briefing. "It contradicts 150 years of practice by Democratic and Republican administrations, so we respectfully but strongly disagree with the rulings."

NLRB Chairman Mark Gaston Pearce issued a statement saying, "the board respectfully disagrees with today’s decision and believes that the president’s position in the matter will ultimately be upheld."

The appeals court's decision could invalidate hundreds of decisions the board has issued in the past year, the AP reported.

House Oversight and Government Reform Committee Chairman Darrell Issa, R-Calif., called on the NLRB recess appointees to resign their posts.“Today’s ruling will certainly cause other opinions unconstitutionally issued by the board to be invalidated," he said in a statement. "To avoid further damage to the economy, the NLRB must take the responsible course and cease issuing any further opinions until a constitutionally sound quorum can be established."

Last year, the Justice Department noted in a memo on Obama's recess appointments that  pro forma sessions in which senators aim to prevent such appointments by having a single member enter the Senate every three days to gavel the chamber into session have been going on since 2007. Both Democrats and Republicans have used the tactic.


By Tom Shoop and Charles S. Clark

January 25, 2013

http://www.govexec.com/management/2013/01/appeals-court-rules-obama-recess-appointments-unconstitutional/60888/