Appeals court rules Obama recess appointments unconstitutional
January 25th, 2013
12:07 PM ET
2 years ago

Appeals court rules Obama recess appointments unconstitutional

Washington (CNN) - President Obama's recess appointments to a federal agency– made without Senate confirmation– have been struck down by a federal appeals court as an unconstitutional use of executive power.

The three-judge panel unanimously concluded Friday three people named to the National Labor Relations Board lacked authority, because the presidential appointments were made while the Senate was technically in a "pro forma" session during the winter holiday break.

The case sets up a potential high-stakes Supreme Court fight between the executive and legislative branches.

Republican and Democratic lawmakers in the past have used the "virtual Congress" tactic to block unilateral appointments by the President when the Senate is away.

"We determine the Board issuing the findings and order could not lawfully act, as it did not have a quorum," said the court.

Republicans had claimed the appointments to the NLRB created a panel that was overly pro-union, and this ruling could invalidate hundreds of findings issued over the past year. The administration is expected to file an appeal to the Supreme Court in coming months.

And the court's conclusion also put in jeopardy the recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, a move also being challenged in a separate lawsuit.

"Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers," said 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."

The White House said it believes Friday's decision will not affect Cordray's appointment, but did express displeasure with the court's action.

"The decision is novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations," said Jay Carney, White House press secretary. "So we respectfully, but strongly disagree with the rulings. There have been– according to the Congressional Research Service– something like 280-plus intra-session recess appointments by, Democratic and Republican administrations dating back to 1867. That's a long time and quite a significant precedent."

A year ago Obama had defended his move after Senate Republicans earlier blocked giving Cordray a floor vote.

"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," said the President 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."

Senate Republicans however applauded the court decision.

"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," Senate Minority Leader Mitch McConnell said in a statement.

Some GOP lawmakers also accused the president of flip-flopping on the issue. When he was a senator, Obama criticized then-President Bush's recess appointment of John Bolton as United Nations ambassador.

Cordray was named the same day as the three NLRB appointments, which gave the board a full panel for the first time in a year. Two of the people were Democrats, the other a Republican.

The lawsuit was brought by Noel Canning, a family-owned Yakima, Washington bottling company, which complained the NLRB unfairly ruled in favor of Teamsters Local 760 during contract negotiations.
Company executives said the board lacked a binding quorum because the recess appointments made by Obama were not legal.

"Small-business owners throughout the country have suffered under the unabashedly pro-union decisions handed down by the NLRB," said Karen Harned, executive director of the National Federation of Independent Business, which filed an amicus brief in the case. "They deserve to be protected from unconstitutional acts that exacerbate the NLRB's devolution from a neutral arbiter between labor and employers to a pro-union government agency."

The issue has sharpened tensions between the White House and Congress. The nation's founders placed the power to make recess appointments in the Constitution to ensure government could operate, back when Congress did not meet year-round. Over the decades, presidents of both parties have used them for political and practical purposes.

Since May 2011, Republicans have been using a little-known procedure to keep the chamber in session, even when it was not really conducting any business– in order to stop the president from making recess appointments.

The legal basis comes from a 1993 Department of Justice brief saying the President should act only if the Senate is in official recess more than three days.

So, party leaders have arranged for a single Republican lawmaker to show up every three days and gavel the Senate to order, wait around for a while, gavel it to a close, then leave.

Legal experts have disagreed on both the tactical and timing procedures by the Senate, and whether the President has unilateral authority to override those legislative tactics.

The case decided Friday is Noel Canning v. NLRB (12-1115).


Filed under: Supreme Court • White House
soundoff (111 Responses)
  1. freedom

    This is the beginning of a slippery slope this administration will be called out on. Government overreach, national security gross negligence, Benghazi.

    January 25, 2013 12:19 pm at 12:19 pm |
  2. Pam from Iowa

    making these appointments during a recess must only be constitutional when it is a Republican making appointments.......no one objected when GW Bush did it....

    January 25, 2013 12:20 pm at 12:20 pm |
  3. mike0404

    Wow, a virtual Congress. Maybe I can send them my virtual taxes.

    January 25, 2013 12:20 pm at 12:20 pm |
  4. Kenneth the VI of Minneapolis

    The fall of Obama?

    January 25, 2013 12:22 pm at 12:22 pm |
  5. Rudy NYC

    Gee, recess appointments have always been accepted in the past. I notice that issue isn't the constitutionality of the appointments, but the fact that some feel the selections are too "pro-union." Guess what, Republicans. When your party wins the White House then you can put your own choices into those political appointments. Didn't George W. Bush use recess appointments to remake the Justice Department.

    January 25, 2013 12:26 pm at 12:26 pm |
  6. Al-NY,NY

    and after a quick check of the Fox Noise webpage, it's plastered across the top of the page as if the world was ending. Step up lemmings as the right wing hate machine on talk radio will be obsessed with this all day. You'll get your chance to call in to Fatty or Shamitty and call for impeachment...

    January 25, 2013 12:27 pm at 12:27 pm |
  7. Steve - Texas

    Kenneth the VI of Minneapolis : The fall of Obama?

    Don't kid yourself.... Obama is as popular today as he was when he first took office! The GOP is in shambles because the public finally understand what they are all about. The coalition Obama built with those the GOP discarded, Blacks, Hispanics, Gays and Women are plenty to keep this country Blue for quite awhile.. Why else would the GOP be trying to rig the next election by changing the Electroral College to their Gerry-Mandered Congressional districts...

    January 25, 2013 12:29 pm at 12:29 pm |
  8. Gregory M. Newbold

    Amazing. For any Democrat ( be he/she a politician, Senator, Congressman or average citizen) that doesn`t see the double standard applied to President Obama ["pro-forma" justification be damned], they need to wake up. Grant no benefit of the doubt to the opposition. Do not trust. But do verify.

    January 25, 2013 12:33 pm at 12:33 pm |
  9. Oneslydragon

    The case decided Friday is Canning v. NLRB (12-1115).

    N O T ! ! ! !

    Really is GOP V. Dem, lets be honest and both parties play the game.

    January 25, 2013 12:33 pm at 12:33 pm |
  10. chris

    Only around half the country voted for him.

    January 25, 2013 12:34 pm at 12:34 pm |
  11. Noah

    This is the very reason we have a broken inadequate government. When an acting president chooses someone to run an agency that person should get an up or down vote to run the agency. When the next president comes in that person should have the same exact right. Instead of we have children using any trick in the book to block any and all appointments made by the president. This is why there is gridlock and nothing at all can get done.

    January 25, 2013 12:36 pm at 12:36 pm |
  12. Bob

    More evidence of Obamas disrespect for our Constitution and the laws of our country. Deny all you like but the truth will out!

    January 25, 2013 12:38 pm at 12:38 pm |
  13. Debbie

    Don't worry. Republicans are leaving the party in droves. Pretty soon there won't be anyone voting republican, even if they try to keep it a secret.

    January 25, 2013 12:39 pm at 12:39 pm |
  14. Sixdayde

    A quote from judge in decision:"Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” U.S. Circuit Judge David Sentelle wrote.

    Isn't this what many have been talking about?

    January 25, 2013 12:39 pm at 12:39 pm |
  15. Sarah Reinecke

    Court "dings" Obama, No the court said it was UNCONSTITUTIONAL!

    January 25, 2013 12:39 pm at 12:39 pm |
  16. Jesse

    Hard to get the real story here.

    January 25, 2013 12:39 pm at 12:39 pm |
  17. mark

    Come on Supreme Court, give Pres. Obama another victory and put another nail in the casket of the GOP! I bet the judges on the appelate court were RepubliSCUM appointees! There is no legal entity known as a "virtual pro-forma" session.

    January 25, 2013 12:40 pm at 12:40 pm |
  18. Joann

    Mr. Obama thinks he can do whatever he wants. And usually he does, with little fan fare from our so called "media"
    A federal appeals court has ruled his actions as unconstitutional....this gets a lttle blurb.

    January 25, 2013 12:40 pm at 12:40 pm |
  19. Eric21

    Thats what happens when you circumvent congress, smooth move bo lets hope the courts reject all your recess appointments and executive actions

    January 25, 2013 12:41 pm at 12:41 pm |
  20. DETfaninATL

    Only Liberals would think a President unconstitutionally abusing their powers is no big deal when it's one of their own. God forbid the shoe be on the other foot. Then every media outlet in this country (IE, the propaganda arm of our gub'mint) would be screaming bloody murder. When are you Liberals going to wake up and start looking at things OBJECTIVELY & WITHOUT BIAS?

    January 25, 2013 12:41 pm at 12:41 pm |
  21. Corey

    Well maybe if the GOP didn't oppose to anything Obama does he wouldn't have to resort to these tactics. You may not like the man or his policies but he was democratically elected and should be allowed to at least appoint who he wants without such opposition from the GOP. I can understand putting up a good fight if it's the SCOTUS as their appointment is lifetime. But holding up some of his cabinet members is childish and if you can't see that then I guess you are one of the children.

    January 25, 2013 12:41 pm at 12:41 pm |
  22. vidal808

    No worry, that is not a big thing. Obama will overcome this. However the GOP as disfunctional as it is today will have a hard time to regroup and unite. The Teabaggers are in the way and the radicals. the minorities are uniting behind the Democratic establishment and crush the Republicans. You will see how the dismantling will slowely take it's course, step by step....

    January 25, 2013 12:42 pm at 12:42 pm |
  23. Mutaman

    "no one objected when GW Bush did it...."

    That's the problem: Republicans object, Democrats don't.

    January 25, 2013 12:42 pm at 12:42 pm |
  24. Kevin

    bout time someone checked his power

    January 25, 2013 12:42 pm at 12:42 pm |
  25. Anonymous

    Violating the constitution is treason. Why is this man still in office. Have we not learned? This man has done so many borderline illegal and immoral things as president, yet the nation still stands and applauds him. What a shame.

    January 25, 2013 12:44 pm at 12:44 pm |
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