Court rules Obama's appointments unconstitutional
By Aruna Viswanatha and Terry Baynes
Fri Jan 25, 2013 8:38pm EST
By Aruna Viswanatha and Terry Baynes
(Reuters) - A federal appeals court ruled on Friday that President Barack Obama violated the U.S. Constitution when he used recess appointments to fill a labor board, in a sweeping decision that could limit presidential power to push through federal nominees.
The court found that the Senate was not truly in recess, for the purpose of a recess appointment, when Obama in January 2012 installed three nominees to the National Labor Relations Board.
The nominees were facing stiff Republican opposition, and the appointments caused an uproar at the time. Republicans argued that Obama undercut the Senate's power to confirm nominees because although most of its members were out of town, the Senate had not formally adjourned.
In a surprisingly broad ruling, the three-judge panel rejected not only the NLRB appointments but any made while the Senate is in session but on a break. That could limit recess appointments to only a few weeks a year.
The U.S. Court of Appeals for the District of Columbia Circuit also ruled that recess appointments could only be used for positions that become vacant while the Senate is in recess.
"If the decision stands, it would be a significant reduction of the president's recess power," said John Elwood, a Washington lawyer who was deputy assistant attorney general in the Office of Legal Counsel from 2005 through 2009.
"This is a big, big decision for executive power," Elwood said. "It is one of the most important decisions in decades."
But the ruling's most profound impact may be its threat to the now-standard practice of presidents ramming through nominees that otherwise would get bogged down in the Senate, often because of unrelated political fights.
"The D.C. Circuit Court today reaffirmed that the Constitution is not an inconvenience but the law of the land," Mitch McConnell, the top Republican in the Senate, said in a statement.
A TEST OF POWERS
The suit started as a routine dispute between soda bottling company Noel Canning and the labor board, but developed into a high-profile appeal with the help of the U.S. Chamber of Commerce and Senate Republicans.
The case was seen as a test of the president's ability to bypass a Senate vote on nominees. The Constitution allows the Senate to block nominees, and both Democratic and Republican presidents have used recess appointments as a way around this for decades.
When Obama made the NLRB appointments, the Senate was not officially in recess. It continued to meet every few days for minutes at a time with few senators present.
The court's decision, issued by a panel of judges who had been appointed by Republicans, hinged on what constitutes a "recess" and whether it includes short breaks while the Senate is still technically in session.
"Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception," the ruling said about the NLRB appointments of Sharon Block, Richard Griffin and Terence Flynn.
It said the president could not have "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."