Despite the claims to the contrary by President Obama and his Justice Department, the U.S. Court of Appeals for the D.C. Circuit ruled today that Mr. Obama’s recess appointments to the National Labor Relations Board were unconstitutional. The three justices voted unanimously against the President and issued a strong statement emphasizing that Mr. Obama lacked the authority to decide when the Senate is in recess.
The case may seem to ride on a legal technicality about what actually defines a Senate recess, but the justices held that the case was an important test of constitutional principals. Obama made the three appointments after the Senate adjoined for a short 20 day period. In order to prevent the President from making appointments during the break, the Senate met for Pro Forma sessions every few days to avoid a recess.
Senate Republicans refused to confirm his candidates for the National Labor Relations Board due to their ties to labor unions. President Obama, in consultation with Eric Holder, declared unilaterally that the Senate was in recess and made the appointments anyway. Republicans were outraged, arguing the Constitution delegates the power to declare a recess solely to the Congress.
After the President appointed union lawyer Richard Griffin, Labor Department official Sharon Block, both Democrats, and Republican NLRB lawyer Terence Flynn to the NLRB in January of 2012, Noel Canning, a bottling company, filed suit, claiming the NLRB ruling against the company was illegal because the recess appointments were unconstitutional. The suit was later joined by Minority Leader Mitch McConnel and the Senate’s Republicans.
Critics of the President said the recess appointments by Obama were unprecedented and constituted a deliberate violation of the separation of powers. There has been an ongoing battle between the Obama Administration and the Republicans over the President’s use of Executive Privileges and today’s ruling is a major defeat for Obama.
Making a bad day worse for the President, the three judges ruled that recess appointments can only be made when the Senate has recessed a session permanently, which only happens at the end of the year. This places a major limit on the use of recess appointments to sidestep the will of the Senate.
The final twist of the legal knife for President Obama came when the three judges also found the Constitution restricted the use of recess appointments to filling vacancies that occur during an actual recess. If this ruling stands, it will prevent any future President from being able to use recess appointments to overrule the will of Congress. The court’s ruling is one of the strongest statements of support for the original intent of the Constitution we have heard from the Federal Appeals Court in many years.
The judges made their opinions crystal clear with the following paragraphs:
“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 intersession interpretation of “the Recess” is the only one faithful to the Constitution’s text, structure, and history.”
“The dearth of intra-session appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments. Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”
“The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government. In light of the extensive evidence that the original public meaning of “happen” was “arise,” we hold that the President may only make recess appointments to fill vacancies that arise during the recess.”
The White House has not commented yet on the ruling, but Mr. Obama is expected to instruct the Justice Department to appeal the case to the Supreme Court. Experienced observers of the high court expect the nine Justices to take the case rather quickly, as today’s ruling leaves the National Labor Relations Board without a quorum.