Court says Obama exceeded authority in making appointments
President Obama exceeded his constitutional authority when he named three members of the National Labor Relations Board while the Senate was on a break last year, a federal appeals court ruled Friday.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that allowing the president to make such appointments as a way around Senate opposition “would wholly defeat the purpose of the Framers in the careful separation of powers structure” they created.
The decision flatly rejected the administration’s rationale for appointing the board members, and jeopardizes the separate recess appointment of former Ohio attorney general Richard Cordray to head the Consumer Financial Protection Bureau. Cordray is the subject of a different lawsuit.
The ruling acknowledged that it conflicts in parts with what other federal appeals courts have held about recess appointments. The issue is likely to be decided by the Supreme Court.
The decision came from Circuit judges David B. Sentelle, Karen LeCraft Henderson and Thomas B. Griffith.
“The decision is novel and unprecedented, and it contradicts 150 years of practice by Democratic and Republican administrations,” White House press secretary Jay Carney told reporters Friday at the daily briefing. “We respectfully but strongly disagree with the ruling.”
Senate Republicans and business groups had challenged Obama’s move to appoint Sharon Block, Terence F. Flynn and Richard E. Griffin to the labor relations board, which at the time had only one member. Because the three were not properly appointed, the court said, the board’s decisions over the past year are invalid.
Obama made the appointments of the board members and Cordray after Senate Republicans had blocked such action and warned the president not to take action while the Senate was on break in January 2012.
The president was defiant. “I will not stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve,” Obama said at the time.
Obama contended that he had the authority under the Constitution’s “Recess Appointments Clause,” which grants power for such appointments “during the Recess of the Senate,” when senators are not in session to fulfill their advise-and-consent responsibilities.
At the time, the Senate was on a 20-day holiday break.
But senators staged pro forma sessions every three business days, a tactic both Democrats and Republicans have employed in the past to keep presidents from making such interim appointments.
Sen. Orrin G. Hatch (R-Utah), one of 42 Republican senators who filed an amicus brief in the case, applauded the court for rejecting the administration’s “flimsy” interpretation of the law.
“Today’s ruling reaffirms that the Constitution is above political party or agenda, despite what the Obama administration seems to think,” Hatch said in a statement.
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