Barack Obama has now officially been declared a law breaker by a federal court. Last year during the Senate recess, Obama made appointments to the National Labor Relations Board. Today the three panel judges that make up the Court ruled that they were both illegal and unconsitutional.
Obama named union lawyer Richard Griffin and Labor Department official Sharon Block, both Democrats, and a Republican, NLRB lawyer Terence Flynn, to the labor board using his recess powers back in January of 2012. He also named Richard Cordray to head the new Consumer Financial Protection Bureau, using those same powers. The Cordray appointment was not part of the court case decided Friday, but has been challenged separately in another suit.
"When Congress refuses to act and as a result hurts our economy and puts people at risk, I have an obligation as president to do what I can without them," Obama said in January 2012. "I will not stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve."
The Washington Times reports,
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 a session permanently, which in modern times usually means only at the end of a year. If the ruling withstands Supreme Court scrutiny, it would dramatically constrain presidents in the future.
And the court ruled that the only vacancies that the president can use his powers on are ones that arise when the Senate is in one of those end-of-session breaks. That would all but eliminate the list of positions the president could fill with his recess powers.
But the court said in the ruling that its duty was not to speed up government, but to hold to constitutional principles.
“If some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands,” the judges wrote.
“The dearth of intra-session 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 continued. “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.”
"Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers," wrote the judges from the U.S. Court of Appeals for the District of Columbia Circuit. "An interpretation of 'the recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”
It looks as if the issue will be on the intent and definition of the word "recess" when this case will most likely be heard by the United States Supreme Court. Is this Bill Clinton dejavu anyone? The word "recess" can be used several ways in the speech known as "legaleeze" (yes, in case you were wondering I just made that up). It can mean the end of the yearly session, breaks during the day or even holiday breaks. Obama's opposition has warned that if this type of definition is allowed, meaning any time the Senate breaks, then he could theoretically be making appointments during the breaks they take for lunch.
The powers of appointment given to the President to make appointments are contained in Article II, Section 2, Clause 3 of the United States Constitution, which reads:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Senate Republicans, led by Minority Leader Mitch McConnell called the appointments unconsitutional, but it was Noel Canning, a bottling company, that ended up suing the NLRB over the issue of the illegal appointments.
“The D.C. Circuit Court today reaffirmed that the Constitution is not an inconvenience but the law of the land, agreeing with the owners of a family-owned business who brought the case to the Court,” said McConnell.
Victor K. Williams, assistant professor at Catholic University School of Law, filed the briefs and argued that the court should reject the case because this is a question between Congress and the President. He called the judges ruling "historically wrong."
“This panel of the D.C. circuit has accomplished what Minority Leader Mitch McConnell failed to do. Minority Leader McConnell said that his No. 1 objective was defeating Barack Obama and Barack Obama’s attempt to govern. This D.C. circuit panel has been successful where McConnell failed. They have really, effectively challenged the president’s ability to govern,” Williams said.
The judges ruling does put them at odds with other federal appeals courts which have ruled differently than they did.
If the administration does appeal, it would have two options: It could go directly to the Supreme Court or ask the entire D.C. Circuit Court to rehear the case that so far has only been heard by the court's three-judge panel. Neither body would be obligated to hear the case but typically, the Supreme Court agrees to hear cases when the administration seeks a review.