Those Recess Appointments

The federal court ruling that President Barack Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board is a far-reaching decision that has many ramifications. It hasn’t received much publicity. The Justice Department is expected to appeal the ruling by the U.S. Court of  Appeals for the D.C. Circuit.

The case revolves around whether the Senate really was in a recess status.

If the Supreme Court upholds the Court of Appeals’ ruling, hundreds of rulings by the NLRB made during more than a year would be invalid, including some that make it easier for unions to organize.

President Obama filled the vacancies Jan. 4, 2012. Congress was on an extended holiday leave. 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 were a sham. Some lasted less than a minute. The Appeals Court rejected that argument and said a recess occurs only during the breaks between formal yearlong sessions of Congress, not just any informal break when lawmakers leave town. The court also held that presidents can bypass the Senate only when administration vacancies occur during a recess.

The three NLRB members who Obama appointed have not stepped aside and are still serving. A White House spokesperson said the administration disagrees with the court decision and the three members who were appointed will continue to serve and it’s business as usual.

This practice of recess appointments has been used by presidents before by both Democrats and Republicans. Under the court’s decision, 285 recess appointments made by presidents between 1867 and 2004 would be invalid. The ruling also raises the question of the legitimacy of Obama’s appointment of Richard Cordray to head the Consumer Financial Protection Bureau. That appointment also is being challenged.

The ruling brings into play the separation of powers and the fact that it conflicts with some other rulings about when recess appointments are valid.

The U.S. Supreme Court is expected to get the case on appeal and, as usual, will make the final decision. Constitutional experts especially are highly interested in this case.