Court: Obama appointments are unconstitutional
Updated at 3:30 p.m. ET
President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel, a federal appeals court panel ruled Friday.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board.
The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions.
The ruling also throws into question Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, also made under the recess circumstance, has been challenged in a separate case.
Obama claims he acted properly in the case of the NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called "pro forma" sessions.
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GOP lawmakers used the tactic - as Democrats have in the past as well - to specifically to prevent the president from using his recess power. GOP lawmakers contend the labor board has been too pro-union in its decisions. They had also vigorously opposed the nomination of Cordray.
Carney: Court's NLRB ruling "novel and unprecedented"
White House spokesman Jay Carney today said the administration "respectfully but strongly" disagrees with the court decision. He said there have been more than 280 intra-session recess appointments dating back to 1867.
"The decision is novel and unprecedented," he said. "It contradicts 150 years of practice by Democratic and Republican administration."
Carney also said the decision does not apply to Cordray's appointment, since it was written about a specific case the court considered.
The Obama administration is expected to appeal the decision to the U.S. Supreme Court, though Carney referred questions with respect to the administration's next steps to the Justice Department. A Justice Department spokesperson, said, "We disagree with the court's ruling and believe that the president's recess appointments are constitutionally sound."
If the decision stands, it means hundreds of decisions issued by the board over more than a year are invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.
On Jan. 4, 2012, Obama appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the NLRB, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.
Obama also appointed Cordray on the same day.
The court's decision is a victory for Republicans and business groups that have been attacking the labor board for issuing a series of decisions and rules that make it easier for the nation's labor unions to organize new members. House Speaker John Boehner said in a statement the ruling was "a victory for accountability in government."
"The Obama administration has consistently used the NLRB to impose regulations that hurt our economy by fostering uncertainty in the workplace and telling businesses where they can and cannot create jobs," he said. "Instead of operating under a shroud of controversy, the NLRB should meet the highest standards of transparency, starting with having its members approved by the people's representatives."
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Chief Judge David B. Sentelle -- reagan appointee
Judge Karen LeCraft Henderson -- ghw bush appointee
Judge Thomas B. Griffith -- gw bush appointee
These ACTIVIST judges are legislating from the bench. Sentelle and Henderson went where apparently no other court has gone. They said that the president has the authority to make appointments only to vacancies that arise during a recess, which would drastically limit a president's ability to make use of the recess appointment power.
Disgusting!
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ONMIDDLGROUND replies: "Oh it's way worse than partisan, almost criminal. Santelle was appointed by Reagan (that's a scandal all it's own) and in turn he overturns the ruling on Oliver North and John Poindexter. He also was the one, after having lunch with Jesse Helms, who became active in getting the special prosecutor dropped and appointed Ken Starr. He is an outspoken member of the federalist society and even in this ruling, added something that wasn't even asked. He's nothing but a paid for, activist, disgrace to the robe".
Presidents from both parties have made hundreds of recess appointments when the Senate has failed to act on nominations. Ronald Reagan holds the record with 243. Obama's predecessor, George W. Bush, made 105.
For all you highly-partisan conservatrolls posting your usual attacks and vitriolic political rhetoric, understand that these appointments were blocked by the Senate MINORITY party first, and now a coup detat by 3 judges all appointed by republican presidents continues this nasty partisan blockage for political points!
So WHO's actually abusing the Constitution: a President who thinks the Senate actually IS in recess when 98 of its 100 members are in their home states (no matter how many seconds its two remaining members spend in the Senate chamber every few days), or Senators who use every trick in the book to avoid fulfilling in a timely manner their Constitutional responsibility to advise and consent?
Chief Judge David B. Sentelle -- reagan appointee
Judge Karen LeCraft Henderson -- ghw bush appointee
Judge Thomas B. Griffith -- gw bush appointee
Sentelle and Henderson went where apparently no other court has gone. They said that the president has the authority to make appointments only to vacancies that arise during a recess, which would drastically limit a president's ability to make use of the recess appointment power.
The issue seems certain to end up before the Supreme Court, which ultimately could clarify a president's authority to fill his administration and appoint federal judges when a minority of the Senate blocks consideration of his choices.
This was obviously a partisan court by republican appointees only playing politics with this decision, and helping the Senate MINORITY blocking recess appointments.
--------------------------------
ONMIDDLGROUND replies: "Oh it's way worse than partisan, almost criminal. Santelle was appointed by Reagan (that's a scandal all it's own) and in turn he overturns the ruling on Oliver North and John Poindexter. He also was the one, after having lunch with Jesse Helms, who became active in getting the special prosecutor dropped and appointed Ken Starr. He is an outspoken member of the federalist society and even in this ruling, added something that wasn't even asked. He's nothing but a paid for, activist, disgrace to the robe".
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Yep, he does appear to be a paid-activist in a very influential position, and just Sentelle's vote to overturn the convictions of Oliver North and John Poindexter -- the only two in the reagan mis-administration to be convicted for any wrongdoing in Iran/Contra -- was just blowing a kiss to saint ronnie for appointing him to this court.
Disgusting!
Disgusting partisan politics that will only get worse if the republicans keep blocking appointments to our government and even this United States Court of Appeals for the District of Columbia Circuit, that still has 3 VACANCIES!
Chief Judge David B. Sentelle -- reagan appointee
Judge Karen LeCraft Henderson -- ghw bush appointee
Judge Thomas B. Griffith -- gw bush appointee
Sentelle and Henderson went where apparently no other court has gone. They said that the president has the authority to make appointments only to vacancies that arise during a recess, which would drastically limit a president's ability to make use of the recess appointment power.
The issue seems certain to end up before the Supreme Court, which ultimately could clarify a president's authority to fill his administration and appoint federal judges when a minority of the Senate blocks consideration of his choices.
------------------
This was obviously a partisan court by republican appointees only playing politics with this decision, and helping the Senate MINORITY blocking recess appointments. Of course it will end up at the right-wing SCOTUS.
Presidents from both parties have made hundreds of recess appointments when the Senate has failed to act on nominations. Ronald Reagan holds the record with 243. Obama's predecessor, George W. Bush, made 105.
It is unlikely that the White House would ask the full D.C. Circuit court to take up the case, since the makeup of this court is now 5-seats appointed by republican presidents and 3-seats appointed by Clinton, with 3 VACANCIES that the Senate MINORITY party is still blocking!
Disgusting partisan politics by the republicans!