Appeals court rules Obama recess appointments unconstitutional
January 25th, 2013
12:07 PM ET
5 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. whouldintyathink

    I would have thought the end run would have been established as an automatic do over. if you are going to make up rules can they at least make as much sense as the rules to kick ball?

    January 25, 2013 12:44 pm at 12:44 pm |
  2. payN2much

    Steve – Texas, u Libs just can't stand not to spew the hate. the Dems control the Presidency and the Senate and u still can't shut the F up. BTW u r in the wrong State, u belong in Oregon or Washington where the REAL Libs are.

    January 25, 2013 12:44 pm at 12:44 pm |
  3. Yeah Right

    Funny how this was fine when GW did it, but now that Obama does the very same thing we need to take it to the courts? If I were Obama, I would go back and question the posts GW filled during his presidency and negate any and all those people have done.

    January 25, 2013 12:45 pm at 12:45 pm |
  4. TexDoc

    There is a balance of powers for a reason. The presidency is not a dictatorship. The congress doesn't appoint, but only confirm. Each has a role and the courts have made the right call.

    January 25, 2013 12:45 pm at 12:45 pm |
  5. Gregory M. Newbold

    The Republican Senate has clogged the system with fillibusters. How many judicial & other Presidential Appointments have been thwarted, to the detriment of the US Public and Governmental efficacy, by these obstrutionists? The recess appointment approach was the rotor-router that cleared the sewer line. It has been used by countless Administartions before Mr. Obama`s.

    The time has come to fully and continually expose the "cheating" of the GOP to the general public. Democrats, BRAND them as CHEATORS to voters so that they can`t win another election.

    January 25, 2013 12:45 pm at 12:45 pm |
  6. Mark

    Anything that may help workers in this country is instantly opposed by the Republicans. The Republicans have left vacancies on the NLRB for years so it cannot function. Business can have their way with workers since an appeal to the board will be impossible. Time for that party to be relegated to the scrap heap of history!

    January 25, 2013 12:46 pm at 12:46 pm |
  7. Marty Curran

    And the saddest part is not so much all the right wing comments, but that it's adults expressing them. WOW. These neo-cons have no grace in loss or victory. Must be something from their collective childhood where they are always the VICTIM. But we must admit, it is fun to watch them whine and complain in light of their recent political losses, Obamacare & the conservative Supreme Court upholding its constitutionality. I LOVE THIS. Come neo-cons! More comments to entertain us, the victors, the DEMOCRATIC PARTY. !!!

    January 25, 2013 12:47 pm at 12:47 pm |
  8. Say What?

    Since the federal appeals court is saying that the Senate was "in office", then shouldnt they have worked, but since they didnt, isnt it timesheet fraud? since when you can sue for something when you werent there or you choose to do nothing about it till now.....

    January 25, 2013 12:47 pm at 12:47 pm |
  9. Rudy NYC


    There is a balance of powers for a reason. The presidency is not a dictatorship. The congress doesn't appoint, but only confirm. Each has a role and the courts have made the right call.
    These appointments have never been overturned in the past.

    January 25, 2013 12:48 pm at 12:48 pm |
  10. Anonymous

    More ridiculous fighting. It's time for a new total independent party to take the lead and have some guts to fix this Country I plan on doing just that as a 2016 presidential candidate. Do it for all the people of America people.

    January 25, 2013 12:48 pm at 12:48 pm |
  11. ER

    More GOP obstruction. I am growing tired of this game.

    January 25, 2013 12:50 pm at 12:50 pm |
  12. RomneyWho

    The republican party leadership is a sham and will be the down fall of this great nation. Obstruction and yet again, obstruction. Beware America, the Ides of March . . . the proverbial 15th day of March, is but just a block away. The day the republican party leadership will ransom off America. 😦

    January 25, 2013 12:51 pm at 12:51 pm |
  13. jon

    I thought ALL presidents have done this in the past – with NO ramifications. What gives here?

    January 25, 2013 12:51 pm at 12:51 pm |
  14. ducdebrabant

    This has GOT to be overturned. They were NOT in session. "Pro forma" parlor tricks cannot be used to keep the government from functioning. The Republican minority couldn't keep the consumer protection agency from coming into existence, so they won't allow anybody... ANYBODY... to head it. They won't allow a vote on ANY nominee. It used to be that people in the House could deny the chamber a quorum simply by not answering the rollcall, even thought they were in the chamber. Speaker Reed put a stop to that by counting them present anyway. This is EXACTLY the same situation. Not only was the Senate not in session, the Senators weren't even in town.

    January 25, 2013 12:52 pm at 12:52 pm |
  15. andrea

    Last time I checked Obama could do whatever the heck he wants and he's going to bend over backwards to keep it this way. What are you all upset about? So proud Obama is our President, our leader!

    January 25, 2013 12:52 pm at 12:52 pm |
  16. Bob Bales

    Pam: The difference is that Bush made his appointments when Congress was in recess, but Obama made his when Congress was not in recess.

    January 25, 2013 12:52 pm at 12:52 pm |
  17. Paulyballgame

    If this same court ruling had been issued against George W. Bush, CNN would have had a huge headline announcing his crushing defeat, along with the worst picture they could possibly find of him. Because it's Obama, it's hidden along side stories about cats who watch tv and mentions that he was "dinged" by the court. Some news organization!

    January 25, 2013 12:53 pm at 12:53 pm |
  18. zeb

    @Anonymous: I'll make sure I vote for someone labeled "Anonymous" on the 2016 ballot

    January 25, 2013 12:53 pm at 12:53 pm |
  19. ducdebrabant

    These must be Republican judges. This REEKS of Bush v. Gore. As soon as a Republican is in office again, I'll bet recess appointments suddenly become legal again.

    January 25, 2013 12:54 pm at 12:54 pm |
  20. Gabbo

    King Barry gets the first of MANY upcoming slaps for his absurd power-grabs. You liberals should be proud – cheating is a long-valued characteristic of democrats.

    January 25, 2013 12:56 pm at 12:56 pm |
  21. Kenny Vee

    I can just picture how this went.

    "But your honor, they were just gaveling in and out of session. They didn't actually do any legitimate governing."

    "Exactly. It was just like when they hold an actual full session...and don't actually do any legitimate governing."

    January 25, 2013 12:57 pm at 12:57 pm |
  22. eagerliving

    @Corey, what do want people to do when they genuinely oppose something the president wants to do? Just sit down give a blanket approval like a good little sheep? Sheesh. Wake the heck up. The GOP isn't opposing things they actually approve of...look at the demographics of this country, in how they vote. There are a ton of people (just regular old people, your friends and neighbors) who support the GOP in opposing some of this president's policies.

    January 25, 2013 12:57 pm at 12:57 pm |
  23. sanity

    Libs, GWB never made such an appointment while the Senate was in session. Grow up.

    January 25, 2013 12:58 pm at 12:58 pm |
  24. nomad2003

    the national labor board is not suppose to be a union shop, Obama tried to pay back the unions by those appointments.

    and the senate is DEM controlled.

    January 25, 2013 12:59 pm at 12:59 pm |
  25. djc60

    To: Yeah Right,
    Bush never did recess appointments, But, if you think you can find just one where he did, then I will shut up. Your beloved president seems to believe he can do just about anything he wishes and not answer for it. He skirts around Congress with every opportunity because he knows even some democrats won't support him on some issues..

    January 25, 2013 12:59 pm at 12:59 pm |
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