recess appointments Archives | Restoring Liberty

WASHINGTON (AP) – President Barack Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board, a federal appeals court ruled Friday in a far-reaching decision that could severely limit a chief executive’s powers to make recess appointments.

The decision of the U.S. Court of Appeals for the D.C. Circuit marked a victory for Republicans and business groups critical of the labor board. If it stands, it could invalidate hundreds of board decisions over the past year, including some that make it easier for unions to organize.

When Obama filled the vacancies on Jan. 4, 2012, Congress was on an extended holiday break. 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.

White House press secretary Jay Carney said the administration strongly disagrees with the decision and that the labor board would continue to conduct business as usual, despite calls by some Republicans for the board members to resign.

Read more from this story HERE.

President Barack Obama made headlines months ago when he installed controversial nominees to key government positions, bypassing the U.S. Senate by declaring the Senate in recess so that Senate confirmation was not needed. Today a federal appeals court signaled that it might rule Obama’s move unconstitutional, and remove those officials from power.

The U.S. Constitution says that Congress can by statute allow minor government players—“inferior officers”—to be appointed by the president, by Cabinet officers, or by the courts. But high-level administrative officials—called “principal officers”—must be nominated by the president, then confirmed by the U.S. Senate.

But the Senate isn’t always around; for part of each year, senators are back in their home states. So the Framers of the Constitution included the Recess Appointments Clause, allowing presidents to make temporary appointments during Senate recesses. Such appointments last until the end of the following calendar year, meaning appointments made in January 2012 last through December 2013.

Starting in December 2011, the U.S. Senate officially adjourned for only three days at a time—which the Constitution allows the Senate to do without going into recess—and did so specifically to prevent Obama from using his recess power. Democratic senators did this a few years ago to block George W. Bush from making recess appointments. Although it’s frustrating when the branches block each other, the reality is the Constitution allows it. And besides, this is just the political pushback to presidents using their recess power to get around the Senate in recent years.

But on Jan. 4, 2012, this president did something no president in American history ever attempted. Obama declared that the Senate was actually in recess because there were not enough senators physically present to do regular business, and thus that he had the constitutional power to make appointments unilaterally. He then appointed three members—a controlling majority—of the five-member National Labor Relations Board (NLRB), as well as the first director of the new Consumer Financial Protection Bureau.

Posts

Abuse of Power: Court Says Obama Appointments Violate Constitution

Federal Appeals Court Likely to Invalidate Obama’s Recess Appointments