President Obama has shown increasing contempt for the constitutional limits on his power, and the courts are finally awakening to the news. A unanimous panel of the D.C. Circuit Court of Appeals ruled on Friday that the President’s non-recess recess appointments are illegal and an abuse of executive power.
The decision, with which the White House strongly disagreed, focuses on the validity of three appointments to the National Labor Relations Board that were made on January 4, 2012.
On January 4, 2012, Mr. Obama bypassed the Senate’s advice and consent power by naming three new members of the National Labor Relations Board and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Other Presidents have made recess appointments and we’ve supported that executive authority, reports the Wall Street Journal.
Obama had argued that his appointments were appropriate because the Senate was in a holiday recess.
But GOP lawmakers gaveled in for a few minutes every three days just to prevent Obama from making recess appointments. The White House argued that the pro forma sessions – some lasting less than a minute – were a sham.
The court rejected that argument, but went even further, finding that under the Constitution, a recess occurs only during the breaks between formal year-long sessions of Congress, not just any informal break when lawmakers leave town. It also held that presidents can bypass the Senate only when administration vacancies occur during a recess.
The White House had consistently claimed such sessions were aimed at retaining the ability to block presidential appointments without Senate approval, but the court said the pro forma sessions were valid.
“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,” the judges said in their opinion.
Recess, the judges said, “is limited to intersession recesses,” and not pro forma sessions when no business occurs.
Administration officials indicated they would appeal the decision, and predicted they would win similar cases pending before other judges.
“This is one case in one court,” said Carney.
But Republican senators who joined in a lawsuit said the chamber stayed in a “pro forma” session during the time in question, denying Obama the right to make recess appointments — and the U.S. Court of Appeals for the D.C. Circuit agreed with them.
In these “pro forma” sessions, a senator would gavel an empty chamber to order every few days and then recess again.
The case has been seen as a test of the president’s ability to bypass the confirmation process in the Senate, whose members have the constitutionally enshrined power to block nominees.
The court nonetheless makes a plausible case based on the text of the Constitution, government practice in the decades after ratification and legal precedent. Mr. Obama’s imperial overreach has invited the courts to re-examine the Constitution’s Appointments Clause and tilt the balance of power back toward the Senate.
Presidents have always made “recess appointments”—because the Constitution provides for them. It’s right there in Article II: “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.”
President George W. Bush made 171 recess appointments. President Bill Clinton made 139. Heck, even President Andrew Johnson made at least 14 recess appointments, writes the ABC News.
Three weeks after the January 2012 appointments, Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, denounced Obama’s move as “an outrageous and unconstitutional power grab,” saying the Senate was in fact in session.