Court Rejects Recess Appointments to Labor Board

Published: January 25, 2013 - New York Times

WASHINGTON — In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago.

The ruling was a blow to the administration and a victory for Mr. Obama’s Republican critics – and a handful of liberal ones – who had accused Mr. Obama of improperly claiming that he could make the appointments under his executive powers. The administration had argued that the president could decide that senators were really on a lengthy recess even though the Senate considered itself to be meeting in “pro forma” sessions.

But the court went beyond the narrow dispute over pro forma sessions and issued a far more sweeping ruling than expected. Legal specialists said its reasoning would virtually eliminate the recess appointment power for all future presidents when it has become increasingly difficult for presidents to win Senate confirmation for their nominees. In recent years, senators have more frequently balked at consenting to executive appointments. President George W. Bush made about 170 such appointments, including John R. Bolton to be ambassador to the United Nations and two appeals court judges, William H. Pryor Jr. and Charles W. Pickering Sr.

“If this opinion stands, I think it will fundamentally alter the balance between the Senate and the president by limiting the president’s ability to keep offices filled,” said John P. Elwood, who handled recess appointment issues for the Justice Department during the Bush administration. “This is certainly a red-letter day in presidential appointment power.”

The ruling, if not overturned, could paralyze the National Labor Relations Board, an independent agency that oversees labor disputes, because it would lack a quorum without the three Obama appointments in January 2012.

The ruling’s immediate impact was to invalidate one action by the board involving a union fight with a Pepsi-Cola bottler in Washington State, but it raises the possibility that all the board’s decisions from the past year could be nullified. The decision also casts a legal cloud over Mr. Obama’s appointment that same day of Richard Cordray as the director of the Consumer Financial Protection Bureau.

A White House spokesman said, “We disagree strongly with the decision” by the United States Court of Appeals for the District of Columbia Circuit, adding that it conflicted with other court rulings and well over a century of government practice. Administration officials did not immediately say whether they would appeal the ruling or wait for other appeals courts to issue decisions in similar lawsuits filed across the country challenging other labor board actions.

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.

“An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President 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,” wrote Judge David B. Sentelle. “This cannot be the law.”

The panel went on to significantly narrow the definition of “recess,” for purposes of the president’s appointment power. The judges held that presidents may invoke their recess appointment power only between formal sessions of Congress – a brief period that usually arises only once a year – rather than during breaks that arise during a session, like lawmakers’ annual August vacations. Two of the three judges also ruled that the president may also only use that power to fill a vacancy that opens during the same recess.

The ruling also called into question nearly 200 years of previous such appointments by administrations across the political spectrum. The executive branch has been making intrasession appointments since 1867 and has been using recess appointments to fill vacancies that opened before a recess since 1823. Among other things, Mr. Elwood noted, it called into question every ruling made by several federal appeals court judges who were installed by recess power.

“You know there are people sitting in prisons around the country who will become very excited when they learn of this ruling,” he said.