Federal Court Unanimously Rules Obama Appointments Violated U.S. Constitution: Obama Ignores!
District of Columbia Circuit
The court’s decision marked a victory for Republicans and business groups critical of the agency. If it stands, it could invalidate hundreds of board decisions over the past year, including some that make it easier for unions to organize.
The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that contrary to the administration’s claim, the Senate was not in recess at the time Obama filled the vacancies on Jan. 4, 2012. Amicus Brief Posted Here
It also held that presidents have the authority to bypass the Senate in filling vacancies only when they occur during a recess, which it said occurs only between the end of the first year of a two-year Congress and when lawmakers convene for the second year.
White House press secretary Jay Carney said the administration strongly disagrees with the decision and that the NLRB would continue to conduct business as usual, despite calls by some Republicans for the board members to resign.
“The decision is novel and unprecedented,” Carney said. “It contradicts 150 years of practice by Democratic and Republican administrations.”
The Justice Department hinted that the administration would ask the Supreme Court to overturn the decision, which was rendered by three conservative judges appointed by Republican presidents. “We disagree with the court’s ruling and believe that the president’s recess appointments are constitutionally sound,” the statement said.
The court acknowledged that the ruling conflicts with what some other federal appeals courts have held about when recess appointments are valid, which only added to the likelihood of an appeal to the high court.
The ruling also threw into question the legitimacy of Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, made on the same date, has been challenged in a separate case.
Obama made the recess appointments after Senate Republicans blocked his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day “recess”. The Constitution allows for such appointments without Senate approval when Congress is in “recess”.
GOP lawmakers used the tactic — as Democrats had done in the past — specifically to prevent the president from using his recess power to install members to the labor board and the consumer board. They had also vigorously opposed the nomination of Cordray. The White House argued that the pro forma sessions — some lasting less than a minute — were a sham.
The three-judge panel flatly rejected arguments from the Justice Department’s Office of Legal Counsel, which claimed that the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.
If the ruling stands, it would invalidate more than 600 board decisions issued over the past year. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.
Obama used the recess appointment to install Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.
All three vacancies on the labor board had been open for months before Obama acted to fill them.
If Obama’s “recess” appointment of Cordray to the newly created consumer board is eventually ruled invalid, it could nullify all the regulations the consumer board has issued, many of which affect the mortgage business.
- Court: Obama Appointments Are Unconstitutional – NPR (npr.org)
- Court: Obama appointments are unconstitutional (blueridgenow.com)
- Court Rules Obama Appointments Are Unconstitutional (patdollard.com)
- Obama picks for panel unconstitutional, court says (foxnews.com)
- Appeals court unanimously rebukes Obama on recess appointments (hotair.com)
- Appeals court invalidates Obama NLRB appointments (conservativelyspeaking.us)