Appeals court rules Obama recess appointments unconstitutional
January 25th, 2013
12:07 PM ET
1 year 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. GK

    If anyone had bothered to go to the courts when Bush did it, this simply would have been decided sooner. It's not a war on Dear Leader.

    January 25, 2013 01:01 pm at 1:01 pm |
  2. jdj

    The founders smile when there is gridlock.

    January 25, 2013 01:01 pm at 1:01 pm |
  3. Jon

    "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."

    Bush never did what Obama did. Bush did not make recess appointments when the Senate said that it was technically in session. Obama has more or less said "I alone will determine when you senators are in session." By his logic, he could make recess appointments during the Senate's lunch hour.

    January 25, 2013 01:02 pm at 1:02 pm |
  4. yippeeskip

    Funny, two of the three judges were democrats...go figure.

    January 25, 2013 01:09 pm at 1:09 pm |
  5. merlin215

    Dings them ? My God , He overstepped his boundary to put in officials that will push his agenda of Pro Union to companies who cannot afford it ... Period Abuse of power and Got caught !! And the Repub party had nothing to do do,with this . The Owner of a business was told He needed to open his doors to unions . So lets read up on stuff before we talk about things ? And BTW It may be heading to the Supreme court where it looks like it may fail ...

    January 25, 2013 01:09 pm at 1:09 pm |
  6. Jackson

    Once again, the GOP shows that these things are just fine when they do it, but not allowed when the Dems do it.

    And the GOP wonder why they have image problems?????

    January 25, 2013 01:09 pm at 1:09 pm |
  7. Ken

    Finally, someone stepping in and telling this Tyrant he can't simply do what he wants. Sure this will go to the Supreme court. And you already can guess they will support this UNAMIMOUS federal appeals court decision (side note - the judges here were one appointed by a Democrat, two by a Republican ... but they all three agreed that Obama was breaking the law). This means all the rulings by the NLRB made by these folks, such as the ruling that Boieng acted in an anti-union manner by building a new plant to expand (not replace, EXPAND) their production in a right to work state .. will be illegal rulings. Thank you, thank you, thank you....

    January 25, 2013 01:13 pm at 1:13 pm |
  8. ducdebrabant

    The Republicans are determined to righ every election, even if a majority votes against them. They have a scheme by which Romney would have won the election, despite winning the popular vote by five million: award the electoral vote by congressional district ONLY in states where Democrats might win a majority. In the solid red south, they want ALL the electoral votes. These people have to be stopped.

    January 25, 2013 01:13 pm at 1:13 pm |
  9. Dave in Houston

    ... divided we fall.

    January 25, 2013 01:21 pm at 1:21 pm |
  10. doofus

    wait... I thought everyone said Obama hated unions...

    January 25, 2013 01:21 pm at 1:21 pm |
  11. Rudy NYC

    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.
    ------–
    He appointed numerous federal openly conservative judges with recess appointments. Shh!

    January 25, 2013 01:23 pm at 1:23 pm |
  12. tiredofbias44

    Obama made these appointments after being paid off by Richard Trumka. Boeing was forced into building more planes with union workers rather than face a NLRB board about to be filled with union thugs. Boeing, Obama and Trumka all knew that Obama violated his oath of office, everybody knew the courts would strike them down and nobody cared . Unions got more jobs with less work, Boeing kept building planes and Obama got re-elected. The only losers were the hundreds of small businesses that were crushed under the heel of Big Union Big Government NRLB. I am sure Obama or Trumka are laughing today.

    January 25, 2013 01:24 pm at 1:24 pm |
  13. I agree...

    but why didn't this get challened when Bush did it? Come on.

    January 25, 2013 01:26 pm at 1:26 pm |
  14. Ferret out the BS

    The president didn't do anything that hasn't been done in the past. Business wants full control through their proxy of the GOP to take us back to the industrial revolution when business controlled everything in a worker's life. Business can be fair and still make profits and big money and not screw over the employees.

    January 25, 2013 01:27 pm at 1:27 pm |
  15. freedom

    Sending military jets to Egypt to the Muslim Brotherhood is also cause for great concern and scrutiny. Nixon was impeached for much less.

    January 25, 2013 01:28 pm at 1:28 pm |
  16. Dominican mama 4 Obama

    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 lawmakers to show up every three days and gavel the Senate to order, wait around for a while, gavel it to a close, then leave
    ------------------------------------------------
    It is more important to block the President any way they can than to fill positions that have been vacant for over a year and would serve to protect the individual NOT companies.
    Rethuglikkklans hardly working for you.

    January 25, 2013 01:28 pm at 1:28 pm |
  17. TexDoc

    No one is challenging the right of a president to recess appointments, every President has used that authority. The problem is that Obama made the recess appointments while congress was IN SESSION, the courts ruled those are illegal and NOT recess appointments. They were simply an attempt to appoint people the democratically controlled senate would not confirm. .

    January 25, 2013 01:29 pm at 1:29 pm |
  18. Fai is Fair

    I agree...

    but why didn't this get challened when Bush did it? Come on.
    ------
    Because the Senate wasn't in session when Bush did it, while in this case it technically was.

    January 25, 2013 01:31 pm at 1:31 pm |
  19. Rudy NYC

    Ken ranted:

    Finally, someone stepping in and telling this Tyrant he can't simply do what he wants. Sure this will go to the Supreme court.
    -----------
    You should try reading the article.....

    "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 lawmakers to show up every three days and gavel the Senate to order, wait around for a while, gavel it to a close, then leave."

    The central issue is whether or not the Senate was "in session". The unanimous decision was more a result of giving the plaintiffs the benefit of the doubt than anything else. The GOP dropped their ball, and they know it. Someone just wants the recess appointment issue to go before the SCOTUS.....where the appointments will be upheld.

    The POTUS must have the ability to act unilaterally during an emergency. If recess appointments are prohibited, what is suposed to happen when the Senate takes one of it's month long breaks, and a vacancy opens suddenly opens up because of a plane crash or something. Is the country supposed to sputter along without a major appointment being filled.

    January 25, 2013 01:31 pm at 1:31 pm |
  20. Abbey

    Once again Obama is wrong. It will take the courts years to fix his mess.

    January 25, 2013 01:33 pm at 1:33 pm |
  21. Dominican mama 4 Obama

    And BTW It may be heading to the Supreme court where it looks like it may fail ...
    -------------------------------------------------
    Yeah, just like Obamacare did....oh wait....

    January 25, 2013 01:33 pm at 1:33 pm |
  22. jj

    You may not like the POTUS doing this...but just WHY did he do it?......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.

    So they refuse to actually be in session...I don't blame him a bit.

    January 25, 2013 01:34 pm at 1:34 pm |
  23. MSam

    What saddens me is that the senate purposely working every 3 days in order for the appointments to not hit the floor isn't discussed. Purposely taking time away just so hearing cannot take place is equivalent to taking a recess and POTUS was well within its scope to make those appointments since the Senate did everything possible for that to not happen.

    January 25, 2013 01:35 pm at 1:35 pm |
  24. Tom

    At a time when the electorate is growing increasingly dissatisfied with the gridlock in Washington and the obstructionist tactics of the Republicans it would seem like a great time for Obama to appeal this case to the Supreme Court. Another spotlight on GOP obstructionism will probably help Democrats in Congressional races. Also consider if the Supreme Court makes a ruling, it cuts both ways - future Republican Presidents would be affected just as much as Obama. This sure feels like another case of Republican folly - hurting their image long term for the sake of winning a short-term battle.

    January 25, 2013 01:36 pm at 1:36 pm |
  25. jan

    Obama doesnt always get what he wants

    January 25, 2013 01:37 pm at 1:37 pm |
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