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. ghostriter

    The difference is that democrats didn't simply gavel in to keep Bush from making appointments that they didn't like and refused to vote on.

    It doesn't matter if you agree with the man or not. Refusing to even vote on appointments is a horrible precedent. Especially when these positions have been vacant for months.

    January 25, 2013 01:37 pm at 1:37 pm |
  2. TomNPitt

    Interesting how "...Obama flipped his position...", when Bolton was appointed during a recess appointment. Why wouldn't it be that the Courts and the gop were the one's who "flipped their opinions", considering Bolton served his full term, and they're stopping these appointments from serviing their's??

    January 25, 2013 01:40 pm at 1:40 pm |
  3. Name lynn

    Obama is black an a cool man, he not a man that argue with the judge an no one else. Obama cant please the people nor the judge, of course the judge is not taking abama side who cares.

    January 25, 2013 01:42 pm at 1:42 pm |
  4. Anonymous

    The courts are here to protect the people from Tyranny. Yes someone should have taken Bush to court. One bad tyrant does not deserve another. It took someone that saw what evil is up to then they did something, and that is a good.

    January 25, 2013 01:42 pm at 1:42 pm |
  5. Healthcare

    Sorry Obama even the Democratic judges ruled you overstepped your authority....
    The reason it did not get challenged when Bush did it was the Dem ocrats didn't genuinely oppose the selections. They never brought it to court like many of us thought they should.

    January 25, 2013 01:44 pm at 1:44 pm |
  6. stevetall

    The Republican concept of government is seriously flawed. No wonder nobody likes them.

    January 25, 2013 01:44 pm at 1:44 pm |
  7. Evergreen

    Republicans blocking appointments to agency that protects consumers from banksters and credit card companies. GOP again representing special interests over common good and common sense.

    January 25, 2013 01:44 pm at 1:44 pm |
  8. R. Glenn

    For those of you complaining that it was done under Bush, even if it was or wasn't, it doesn't all of a sudden make it legal. "Two wrongs don't make a right." At least someone's finally reigning in the executive branch of our government. It's about time! We've had many years now with the Exucutive Branch taking more and more power from the people and their representatives.

    January 25, 2013 01:44 pm at 1:44 pm |
  9. early

    The courts are here to protect the people from Tyranny. Yes someone should have taken Bush to court. One bad tyrant does not deserve another. It took someone that saw what evil is up to then they did something, and that is a good.

    January 25, 2013 01:44 pm at 1:44 pm |
  10. Future

    Great..
    The president should have all appts confirmed by congress.

    January 25, 2013 01:46 pm at 1:46 pm |
  11. Lilli

    What is the President to do when the righ-wing crazies are refusing to approve the folk that Pres. Obama is putting forward ?? MUST THE COUNTRY WAIT ANOTHER 4 YEARS TO GET STUFF DONE ???

    Hillary/2016

    January 25, 2013 01:47 pm at 1:47 pm |
  12. Loud Liberal

    G.W. Bush made numerous recess appointments DURING SO CALLED "PRO FORMA" SESSIONS held by Democrats for the same purpose – to prevent Bush from putting far, right wing hacks on the federal bench and to head federal agencies. What the DC Circuit has done is to invalidate many of G.W. Bush's 171 judicial and administrative recess appointments, and, arguably, all of their rulings and opinions.

    January 25, 2013 01:49 pm at 1:49 pm |
  13. Dave

    Allow up or down votes, or be voted out of the Senate. Republicans get to decide!

    January 25, 2013 01:50 pm at 1:50 pm |
  14. Blah blah the wheel's off your trailer

    If only the court would finally rule on a war crimes tribunal for lack of WMDs.

    January 25, 2013 01:53 pm at 1:53 pm |
  15. ialsoagree

    For those talking about Bush as though Bush and Obama are the only people who have done this – get a clue. Making appiontments while Congress is out of session has been going on since the foundation of this country.

    This court ruling says that any Senator who wants to disrupt the process merely needs to enter the Senate chamber, bang a gavel a couple times, and go home.

    This isn't a victory for Republicans. The next Republican president trying to get appointments is going to have this exact same thing happen to him by the democrats, and with a legal precedent that says there's nothing he can do.

    This is a loss for the American people. Now, 1 disgrunted Senator can bring a halt to an entire government process just because he didn't get his way.

    January 25, 2013 01:55 pm at 1:55 pm |
  16. jim

    Yeah, way to go court. yeah.

    January 25, 2013 01:56 pm at 1:56 pm |
  17. Jsun

    Small businesses getting hurt by pro-union decisions being handed down? What small business has unionized workers, or maybe I need a better definition of "small business" again?

    January 25, 2013 01:56 pm at 1:56 pm |
  18. david

    this is good.LET THE HIGHEST COURT IN THE LAND DECIDE.then it will law for all parties .

    January 25, 2013 01:57 pm at 1:57 pm |
  19. historian

    well.. well...seems history is repeating it's self....F.D.R. was rebuked by the courts many times for his over reaching.methods ...and the same will happen to the current POTUS

    January 25, 2013 01:58 pm at 1:58 pm |
  20. sergio

    Sen. Mitch McConnell “the king of the filibuster nation” forced the president to make recess appointments so the government can function, and today thanks to cowered Sen. Reid, the hold on nominees and obstruction will continue for two more years. We need a new leader in the senate that will protect the voters that give victory to the senate and president…

    January 25, 2013 01:59 pm at 1:59 pm |
  21. BC23

    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.

    Thats at the top of the story gor those who didn't read it.
    They are claiming that it is not a recess appointment because they were technically still in session.

    January 25, 2013 02:01 pm at 2:01 pm |
  22. simplyput

    Let's get one thing straight: half of the fifty-percent that voted voted for Obama. I think that means a *majority* of about 25% if my fractions serve me right. Seeing alot of *tyranny* references where I live. About time courts started standing up.

    January 25, 2013 02:03 pm at 2:03 pm |
  23. Evergreen

    So we pay these politicians to pretend they are at work. I would compare this to employees deciding to have the receptionist show up to answer the phones so the boss will think the rest of us are at work. This should be the highlight of the story.

    January 25, 2013 02:04 pm at 2:04 pm |
  24. Zandigra

    This is a very good decision. It's good for freedom, bad for socialism and Obama. So, a very good decision!!!

    January 25, 2013 02:04 pm at 2:04 pm |
  25. Al

    Fire them and have them since they were not legally appointed return all the money that was stolen from the tax payers.

    January 25, 2013 02:06 pm at 2:06 pm |
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