U.S. Court of Appeals Throws a Wrench in the Works of Presidential Recess Appointments

The United States Court of Appeals for the District of Columbia ruled on Friday that President Obama violated the Constitution when he appointed three people to the National Labor Relations board and appointed Richard Cordray to be director of the Consumer Financial Protection Bureau during a pro forma Senate recess last year.  The case was brought by a Pepsi-Cola bottler who disagreed with the NLRB's decision in a labor dispute.  

Friday's ruling says that appointments can be made only during the sort of recess that occurs between formal sessions of Congress--not informal recesses like vacation and holiday breaks. Further, two of the judges ruled that the President may only make appointments that arise during that same recess, thus eliminating any opportunity to make appointments that have become stalled in the Senate.

what eye thynk:    All three judges on the appeals court panel are Republicans who were appointed by Republican presidents; but Democrats are not blameless in this latest partisan game of one-up-man-ship since they created the monster themselves. 

A little background--from an article by Charlie Savage and Steven Greenhouse:

"Presidents have...made recess appointments during Senate breaks in the midst of sessions going back to 1867...The appeals court's decision goes against 150 years of practice by both Democratic and Republican presidents...President Obama has made 32 such recess appointments...Clinton made 139, while Mr. Bush made 171... 

...Nearly all of those appointments would be unconstitutional under the rationale of the United States Court of Appeals for the District of Columbia Circuit... 

...The current dispute can be traced back to 2007, when Democrats took control of the Senate.  Hoping to block Mr. Bush from making any more unilateral appointments, they did not formally recess before going home for Thanksgiving.  Instead, they held pro forma sessions, meaning a member came into the nearly empty chamber every third day and banged the gavel...

This latest fiasco is centered around The National Labor Relations Board appointments.  The NLRB is made up of five members who are appointed by the President and serve five year terms. When President Obama was inaugurated in January 2009, the NLRB had only two members because three of the member's terms had expired the previous year and, when Senate Democrats would not approve his first nominations, President Bush refused to nominate anyone else to fill the positions--thus rendering the board completely powerless.

In a fit of childish pique, and taking full advantage of their 60 vote rule, Republicans in the Senate refused to act on any of President Obama's NLRB nominations when he took office.  This stand-off continued for nearly three years. As for the Cordray appointment, Senate Republicans had made it clear that they would refuse to confirm anyone to head the Consumer Financial Protection Bureau because they didn't approve of the bureau's creation and refusing to appoint a head guaranteed that it would never be able to function in any meaningful way.

"Under Mr. Obama, Republicans turned the tables by using the power of the House to block the Senate from adjourning for more than three days.  But last January, Mr. Obama decided to challenge the new tactic by declaring the pro forma sessions a sham and appointing the three labor board members, along with Mr. Cordray."

In response to the court's ruling, Mr. Elwood, former Bush administration pointed out that the court's reasoning could also change other settled actions, including cases reviewed by appeals courts in which a judge had received a recess appointment.  "You know there are people sitting in prisons around the country who will become very excited when they learn of this ruling."

The White House has not said whether it will appeal the court's ruling; but I don't see how they can allow this decision to stand.  The chaos that could result if the ruling is interpreted in the broadest terms is truly frightening--labor disputes would have to be re-decided, criminal charges could be reversed and new appointments to any position could be held up permanently, rendering some government agencies completely unworkable, (witness the inability of the National Labor Relations Board to make any decisions during the late Bush/early Obama years).

Essentially, the President and the country would be at the mercy of Congress.  And we've all seen how well that branch of government has functioned lately.