President Obama suffered a serious embarrassment today when the U.S. Court of Appeals for the District of Columbia unanimously ruled that he overstepped his constitutional powers when he used recess appointments to name three members to the National Labor Relations Board on January 4th, 2012.
Although the Senate was holding pro forma sessions, Obama said that it was really in recess because it was conducting no business over the 20-day Christmas break. In other words, Obama sought to establish the principle that he, not the Senate, was entitled to decide when the Senate was in session.
Were he to prevail in this assertion of presidential power, it would have gutted the Senate’s power to advice and consent to nominations to executive posts and thus eliminated one of the Constitution’s carefully designed checks on executive power.
The administration will most likely appeal to the Supreme Court. But that Court could let the lower court’s decision stand simply by refusing to grant a writ of certiorari, which is necessary to appeal most cases to the high court. The fact that the ruling from a three-judge panel was unanimous greatly increases the chances that the court will not “grant cert,” to use the jargon of the court.
Assuming this decision stands, all the decisions of the NLRB since January 4th, 2012, will be void. His appointment of Richard Cordray head to the new, and very powerful Consumer Financial Protection Bureau, made at the same time, and being challenged in a separate case, would also fall.
Presidents have increasingly used recess appointments to get around Senate obstruction, usually a filibuster. But this use of the power was brazen as Obama had only just nominated the men and the Senate had not had any time in which to act.
"His appointment of Richard Cordray head to the new, and very powerful Consumer Financial Protection Bureau, made at the same time, and being challenged in a separate case, would also fall." n nA big win for the GOP. The last thing their paymasters want is strong consumer protection.
Yes … God forbid Obama actually have to obey the Constitution ….
gotta hand it to your opponents, though, Hillel. Look at all the faceless cowards they enlisted to vote your comment down.
You don't wanna see my face. You might have a tough time looking at another one ever again.
Being well acquainted with the Cordray family, I have been following that case with some interest. The important point is that Congress, mindful of the sensitivity and potential for abuse with this new Bureau, explicitly inserted in the enabling legislation an unprecedented specific requirement that the Bureau Chief had to be confirmed by the Senate. Obama proceeded promptly and willy-nilly to ignore that provision. Dick should have stayed here in Ohio and bided his time for 2014 instead of taking that compromising appointment. As a former State AG, he ought to have been able to read the plain language of the statute.
Thank you for bringing this point up. I was so disappointed in the Wall Street Journal front page story about the judicial decision. It was "poor Obama being mistreated by Republican judges" all the way. Nothing about the blatant breaking of the law by installing Cordray without the Senate's consent.
Wait a minute: n1) can't the administration ask for an en banc rehearing in front of the entire circuit? n2) how would the President's attempt, if successful, have "gutted the Senate’s power to advice (SIC) and consent to nominations to executive posts"? As far as I understand it, interim appointments such as this can be reversed by the Senate. n3) No comment about the underlying reason, which is the abuse of the filibuster by the opposition? nWhy am I not surprised. I'm sure the kiddies who have been trashing my comments on other threads will accuse me of something, but how come Commentary never complains when equally odious acts of Republicans are committed, such as the recent attempt by Arizona Republicans to deny high school diplomas to students who refuse to take a loyalty oath that includes the words "so help me God"?
Complaining about Republican misdeeds unrelated to recess appointments is what's known as "changing the subject." n nYes, the Administration can request an en banc rehearing. Given the unanimity of the panel issuing the decision, it'd be a real longshot – - – but they could do it. n nAnd, no, the Senate cannot reverse a legitimate recess appointment – if they could, the Democrats would've run John Bolton out as UN Ambassador in a heartbeat. A recess appointment holds office until the end of the Session of Congress during which the appointment was made. n nAs far as your "underlying reason" is concerned – sorry not true. None of these appointments were filibustered – they were never submitted to the Senate for action.
1. As I and most of the free world understand it, the reason that may crucial commission posts lie vacant is because Senate GOP has threatened to filibuster any appointments brought by the president. So in spite of your attempt to cast it as "changing the subject", I think it's a valid argument. n2. According to the New York Times: "The three judges on the appeals court panel, all of them appointed by Republicans, rejected the Justice Department’s argument that Mr. Obama could make the labor board appointments by declaring the Senate’s pro forma sessions during its winter break — in which a single senator came into the empty chamber every three days to bang the gavel — a sham. The Republican-controlled House of Representatives had refused to let the Democratic-controlled Senate adjourn for more than three days. " I therefore thing an en banc confirmation of the decsision is far from the foregone conclusion you cast it. n3. The "underlying reason" is the virtual assurance of a filibuster. The NLRB has been without a quorum for years now because of Republican antiunion vindictiveness.
4. Harry Reid invented this ploy of keeping the Senate in pro forma session back in 2007 in order to prevent any further "atrocities" such as John Bolton. In January 2011, with GOP control of the House, the chickens came home to roost and now Obama is wearing the same straitjacket that Bush had to endure for his last two years. The difference is that Bush, under no illusion that he was a Constitutional scholar, did not violate the separation of powers and attempt to tell the Senate what rules it had to follow. There is an easy solution: gain control over the House and Harry Reid can then gain permission to recess the Senate. The way the House stacks up until 2022, good luck with that.
What decisions made by the board are going to be invalid – serious ones that is?
Oh dont worry, 0bama will take it the Supremes, and they will profusely appologize and say it was a misunderstanding. Of course these appointments will stand.
clare, how is allowing the President the right to fill vacancies "on our way to a one party dictatorship?"
Any person calling herself/himself u201coldleftieu201d is not asking this question of me in good faith, but I will respond anyway. If the decision holds, it bodes well for separation of powers.
I of course wonder how you can be so insulting as to question my good faith, but I can't be responsible for your error. How does it bode well for separation of powers, since the action was taken because of what many consider to be an abuse of Senate power in the form of the filibuster? And how does separation of powers be a valid defense to the minority in the Senate denying the President the ability to run his administration by preventing commissions from establishing a quorum?
It is most interesting that u201coldleftieu201d is supporting a social democratic administration. No more from me in response to your obscurely posed questions. I left a blog link that you are welcome to consult. I will not answer further comments from you.
If anyone responded to you in the manner you just responded to me, you would be accusing them of all sorts of nefarious intentions. Shame on you.
Clare isn't being very nice. BUT, having said that … the Senate has the responsibility and the right to "advise and consent" on nominations. Obama tried to skirt that by the now well-abused-by-both-party's claim of a recess appointment (a tool that was legitimately used more than a century ago when our Congress was only part-time and would go many months without being in session). Obama's problem here is that the Senate was NOT in recess. Just because he wanted to tell them they were, doesn't mean they were … and he broke the law. If we (the American people and the Courts) were to let that stand, it would be on the way to one-party control because then the president (from whatever party) would be able to act without regard to the Senate or the Constitution.
Up yours.
Can't we keep it civil?
You see oldleftie-seeking-wisdom the three branches of government are separate but EQUAL. That means one branch of government cannot tell the other branch of government when it is in recess. Not even dingy Harry Reid claimed the Senate was in recess. Recess appointments can't be legally made when the Senate is not in recess. n nYou see oldleftie living under the rule of law by definition means you have to obey the law even if you don't like it; even if it is to your political disadvantage. A question you have to ask yourself is "Do I want to live under the rule of law or don't I?" n nAbuse of power is another way of saying not following the law. The Constitution says the Senate is to be governed by the rules the Senate establishes and only by rules the Senate establishes. Consequently it is impossible for the Senate to abuse it's power by following its own rules. n nObama, or whoever he is, aspires to be the benevolent dictator you have been dreaming about since puberty. There are at least 10 million Americans, myself included, that will gladly die to make sure that does not happen.
So, the remedy for a alleged abuse of power is…an abuse of power? Now wonder the Constitution is in shreds.
Possibly because the Constitution doesn't give him the EXCLUSIVE right? I know, don't confuse a lefty with facts.
Presidents should respect the role of the Senate to approve of decisions made.
Filibuster is not reason these appointments not brought up. Real reason Reid and demoncrats did not want to vote on these NLRBr nAppointments: dem senators up for reelection in red states did not want to go on record supporting avidly pro union lackeys .r nSimilar as to why no budget