Opinion:Washington, D.C. Federal Appeals Court rules every President in last 150 years abused power

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Article 2, Section 2 of The United States Constitution.

Just prior to Shabbos last week, the Washington D.C. District Federal Appeals Court made a landmark decision. The court ruled the “recess appointments” President Obama made a year ago to the National Labor Relations Board (NLRB) were an abuse of power---that he acted when the Senate was not actually in a recess, thus the appointments were void and the NLRB has not had a quorum to operate (meaning that every decision by the board in the past year was null and void).

That, however, wasn’t the landmark or surprising part of the ruling. Many liberal commentators had expected the court to rule against the administration (these particular appointments were made while the Senate was in session). The historic part of the decision is 285 recess appointments made by Presidents between 1867 and 2004 would also be invalid (too late to effect the lives of most of them).

Recess appointments are not only used by Presidents to fill slots when Congress is adjourned, but as a way to bypass the Senate’s right to approve presidential appointments such as Obama did with the NLRB or as George W. Bush did (twice) making John Bolton our UN Ambassador.

The President’s Press Secretary Jay Carney was correct when he said,

“The decision is novel and unprecedented,” Carney said. “It contradicts 150 years of practice by Democratic and Republican administrations.”

However, the court is also correct when it says all those appointments were unconstitutional. The reason that ruling had never been made before is no one ever sued over those appointments before.

The DC District judges argued a President’s recess appointment powers don’t apply to “intrasession” appointments (such as when they close for a holiday), but only after Congress has adjourned a session permanently, which usually means only at the end of a year or between Congresses (every two years).

During the initial hearing, the President’s lawyers argued that since the full Senate wasn’t actually meeting regularly, lawmakers were technically in an intra-session “recess,” and he could use his constitutional power to make appointments not needing the chamber’s consent. Two of the judges questioned not only that move, but every recess appointment made other than during traditional inter-session recesses that close out each year.

“Once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” said Judge Thomas B. Griffith.

He was joined in his pointed questioning by Chief Judge David B. Sentelle, who said the clause in the Constitution giving Presidents recess appointment powers (see above) refers to “the recess,” which, he said, suggests the one at the end of each year, not the breaks Congress regularly takes for holidays, weekends or other reasons.

The President’s attorneys responded that if the court were to rule that way, it would upset the balance that has been maintained over decades, and would conflict with another appeals court’s precedent — though that didn’t bother Judge Sentelle.

“Forget about a century of precedent — go back to the Constitution,” he told Beth Brinkmann, the Justice Department lawyer who argued the case for the Obama administration.

In its ruling, the court said its duty was not to speed up government, but to hold to constitutional principles.

“If some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands,” the judges wrote.

“The dearth of intra-session appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent Presidential exercise of a supposed power to make such appointments,” the judges wrote. “Recent Presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”

The judges said the recess power was created for a time when Congress met only a few months out of the year, and was designed for the President to fill vacancies during the long periods when Congress was out. In modern times, when Congress is almost always capable of meeting, the recess powers should be more circumscribed.

The court stayed its ruling pending appeal, but should the Supreme Court refuse to hear the appeal or rule against the Administration, there will be a lot of NLRB ruling needing to be re-argued.

The case was brought to trial when Noel Canning, a bottling company, sued the NLRB (based on a ruling against the company, arguing that a rule issued by the new board was illegal since the recess appointments were unconstitutional). Senate Republicans, led by Minority Leader Mitch McConnell, joined in the suit.

The Obama appointments were unprecedented as they were made at a time when the Senate was meeting every third day — specifically to deny him the chance to make an appointment without the “advice and consent” of the Senate.

Here comes the additional chaos. The ruling also throws into question the legitimacy of Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, made on the same date, has been challenged in a separate case.

And while the court has stayed the decision about the NLRB appointments being null and void, their ruling has set precedent. Since it is the Circuit Appeals Court for Washington, D.C., it means their ruling is the law of the land for the Federal Government. Unless the Supreme Court overturns the decision, Obama’s hands and those of every future President are very much tied.

Jeff Dunetz is the Editor/Publisher of the political blog “The Lid” (www.jeffdunetz.com). Jeff contributes to some of the largest political sites on the internet including American Thinker, Big Government, Big Journalism, NewsReal and Pajama’s Media, and has been a guest on national radio shows including G. Gordon Liddy, Tammy Bruce and Glenn Beck. Jeff lives in Long Island.