Panel Of Conservative D.C. Circuit Court Of Appeals Judges Ruled Obama's Recess Appointments Unconstitutional, Supreme Court To Review

SCOTUSblog: NLRB v. Noel Canning Is “A Major New Opportunity For A Minority In The Senate” To Block Temporary Recess Appointments. Supreme Court reporter Lyle Denniston points out that the D.C. Circuit Court's ruling has the potential to encourage the “thwarting of presidential nominations” not just for open positions at the NLRB, but at other federal agencies as well:

Strictly curbing the President's power to temporarily fill government posts to keep an agency in operation, the D.C. Circuit Court ruled Friday that the constitutional authority to fill a vacancy can only be used when one Congress has ended and before a new Congress comes to town, or when there is a formal break at the end of one session, but not during any other mid-session break. 

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In the current atmosphere of partisan gridlock, which often involves thwarting of presidential nominations, the ruling provides a major new opportunity for a minority in the Senate to deny the President the authority even temporarily to put a new government officer to work in a vacant spot.  When a vacancy arises while Congress is in session, and the Senate does not act on it, the President will not be able to fill it during the next time the Senate takes a break.  The ruling came one day after the Senate chose not to make a major change in its filibuster rule, which is the main weapon of a Senate minority seeking to challenge presidential action.

The decision nullified President Obama's temporary appointments a year ago to three empty seats on the five-member National Labor Relations Board -- an agency that has often been the target of conservative opposition, and that frequently has been unable to function because it did not have a sufficient number of members at work.  The President had made those three appointments while the Senate was out of town, except for intermittent, routine sittings, between the two sessions.  Each Congress sits for two sessions over two years. 

The ruling, however, is not confined to the situation at the NLRB.  As an interpretation of the Constitution's words dealing with temporary government appointments, it would extend to all federal agencies whose officers are nominated by the President and require Senate approval -- including federal judges. [SCOTUSblog, 1/25/13]

Right-Wing Media Claim Unexpected Decision Is Proof That Obama Administration Is Lawless

The Wall Street Journal: Recess Appointees Are “Illegal” Because They Were Appointed During A “Non-Recess Recess.” In an editorial, the WSJ accused NLRB appointees Richard Griffin and Sharon Block of “breaking the law” because they accepted appointments while the Senate was still holding “pro-forma sessions”:

If at first you don't succeed in breaking the law, try getting a promotion. That's the formula now at work at the National Labor Relations Board, where deposed Board member and Big Labor loyalist Richard Griffin is poised to become general counsel.

Mr. Griffin was one of three non-recess recess appointments President Obama made to the NLRB while the Senate was still holding pro-forma sessions in January 2012. Those appointments have since been ruled unconstitutional by three federal appellate courts including the D.C. Circuit, and the Supreme Court will take up the issue in NLRB v. Noel Canning this term.

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Mr. Griffin would be the agency's top legal official, yet as a member of the Board he and the other non-recess recess appointees continued to issue decisions even after the courts had declared their appointments illegal. Altogether, the Board continued operating without a legitimate quorum for months, issuing hundreds of decisions that are presumptively invalid and will potentially have to be reconsidered after the Supreme Court's decision in Noel Canning. [The Wall Street Journal, 10/21/13]

The Washington Post's Jennifer Rubin: Obama Views Congress As An “Inconvenient Distraction;” Recess Appointments Are A “Power Grab.” The Washington Post's conservative columnist Jennifer Rubin praised the conservative judges on the D.C. Circuit who found Obama's NLRB appointments unconstitutional, calling it a victory for small government:

It was a bad day for the lefties afflicted with the totalitarian temptation. (Relax: It is a term of art, a well-known one, and I am not calling Democrats totalitarians.) Two significant developments point to the importance for conservatives -- who worry about unlimited, intrusive, abusive government and the squelching of political minority rights -- of the rule of law and constitutional structure in preserving liberty.

First we have a devastating blow delivered to the administration by the federal appeals court over the president's power grab on appointments[.]

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Although [Obama] often talks as if Congress is an inconvenient distraction, the president has been reminded that he does not reign supreme and must actually share power with the legislature. The decision throws into doubt the validity of a slew of egregiously pro-union decisions by the board. [The Washington Post, 1/25/13]

But The Noel Canning Decision Reversed Decades Of Precedent And Over A Century Of Practice By Both Democratic And Republican Presidents

Constitutional Accountability Center: The D.C. Circuit Court Decision Was “Extreme” And “Contradictory To Settled Executive Branch Practice.” Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, called the circuit court's decision “bewildering,” noting that previous presidents have made hundreds of appointments during “intra-session” recesses:

Few, if any, Supreme Court observers were surprised when the Court granted review in National Labor Relations Board v. Noel Canning.  The D.C. Circuit's decision not only threatens to invalidate every order issued by the Board - which handles matters regarding workers' rights to improve their workplace conditions and wages - since January 4, 2012, but is also contradictory to settled executive branch practice and inconsistent with the Constitution's text and history.  It's an extreme decision that deserves to be taken up by the High Court.

The facts underlying the D.C. Circuit's decision would be almost as bewildering as the ruling itself, if they didn't represent the obstructionism that has sadly become business as usual in the appointments process.  As the Senate went into recess in January 2012, the Board -- with three vacancies -- faced the prospect that it would no longer be able to operate. The Supreme Court had held in the 2010 case of New Process Steel v. NLRB that the Board could not act if three of its five positions were vacant, and the Senate had failed to act on President Obama's three pending nominations to the Board, one of which had been pending for nearly a year.  To enable the Board to continue to function, the president made three appointments pursuant to the constitutional power that presidents of both parties have used for decades to make temporary appointments while the Senate is in recess. Indeed, during oral argument in New Process Steel, Chief Justice John Roberts asked then-Principal Deputy Solicitor General Neal Katyal why this very power might not be a solution to the problem of vacancies on the Board.

With the Board's authority to act restored thanks to the recess appointments, the battle over the NLRB shifted from the Senate floor to the courts. Conservative judges on the D.C. Circuit and the Third Circuit have recently held, in conflict with prior decisions of other federal courts, that President Obama lacked the authority to make these recess appointments.  While this has been made into a partisan issue - every Republican senator signed on to a brief at the certiorari stage in Noel Canning arguing against the President's NLRB recess appointments -- it shouldn't be. The George W. Bush administration zealously defended the presidential recess appointment power.  It was used by Presidents Bill Clinton, George H.W. Bush, and Ronald Reagan before him. All told, presidents have apparently made more than five hundred recess appointments during intra-session recesses, including appointments of three cabinet secretaries, five court of appeals judges, ten district court judges, a director of Central Intelligence, a chairman of the Federal Reserve, numerous members of multi-member boards, and holders of a variety of other critical government posts. [Constitutional Accountability Center, 7/17/13]

Bloomberg: Pro-Forma Sessions “Last Only A Couple Of Minutes,” And Were Called By Republicans To “Block Presidential Recess Appointments.” Republican presidents have repeatedly made recess appointments during “intra-session” recesses, but Republican senators took issue with this previously uncontroversial practice only when Obama made his recess appointments to the NLRB:

The Noel Canning decision arose in the context of an ongoing struggle between presidents and Congress over the use of the recess appointments power. The Constitution conveys that power in a paragraph that authorizes the President “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.”

When the Democrats regained control of the Senate in 2007, they began a practice of conducting so-called “pro forma sessions” during those recesses that occur within sessions of Congress. These pro forma sessions typically last only a couple of minutes, if that, during which the only business conducted--often by a single senator -- is simply a call to order and adjournment until the next pro forma session. Senate Majority Leader Harry Reid (D-Nev.) -- now a supporter of the contested Obama appointments -- originally took the position that such pro forma sessions converted otherwise lengthy recesses into shorter adjournments, each of which would be too brief to trigger the president's recess appointments power. Although apparently advised by the Justice Department that his recess appointments power remained intact, President George W. Bush declined to challenge the Reid strategy.

Between Dec. 17, 2011 and Jan. 23, 2012, the Senate again met only during ten pro forma sessions -- but this time, not at the Democrats' behest. Article I, Section 5 of the Constitution provides that "[n]either House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days ... ." The evident purpose of this clause is to enable each House to keep the other in town in order to assure that business between them may be conducted. House Republicans, however -- who were by no means staying in town to conduct business of their own -- used this clause to deny the Senate permission to adjourn for more than three days between the end of the first and the start of the second session of the 112th Congress. The intent, once again, was to block presidential recess appointments. [Bloomberg, 2013]

Obama Has Faced Unparalleled Republican Obstruction Of His Nominees, And His Recess Appointments Are Necessary To Prevent Even Further Governmental Dysfunction

The New Yorker: A Supreme Court Ruling Against Recess Appointments Will “Create An Entirely New Level Of [Government] Gridlock And Inaction.” As CNN legal analyst Jeffrey Toobin explained in The New Yorker, Obama's nominees to federal agency positions and to the judiciary have faced “unprecedented obstruction” from congressional Republicans and a Supreme Court decision finding such appointments unconstitutional will be a huge blow to regular government operations:

[T]he case before the Justices will determine whether some federal agencies will exist at all.

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Many of the President's most important powers come from his ability to appoint the members of quasi-independent agencies, like the Securities and Exchange Commission, the Federal Trade Commission, and the National Labor Relations Board. All of the President's appointments to these bodies are subject to approval by the Senate. This case concerns what happens when the Senate refuses to take up-or-down votes on the President's appointments. If the Senate refuses to vote on a President's nominees, how can the President fight back?

This is far from a merely theoretical issue. Since Obama became President, Republicans in the Senate have engaged in unprecedented obstruction of his nominees to these agencies. Worse, Republicans have been able to thwart the President even though they have been in the minority. Filibusters (once extraordinary measures) have become routine in the contemporary Senate, so as few as forty senators can prevent any nominee from coming up for a vote.

In response, Obama has done what any number of his predecessors have done--make recess appointments.

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A conservative panel of the United States Court of Appeals for the District of Columbia Circuit ruled against the Obama Administration, declaring that intra-session recess appointments (like several to the N.L.R.B.) were invalid. Most important, the Court ruled that all actions taken by these recess appointees were invalid. This meant that more than a thousand N.L.R.B. decisions were suddenly declared null and void.

If the ruling by the D.C. Circuit is upheld [in Noel Canning], the result will be a massive shift of power from Presidents to Senate minorities. Forty senators will have the power to stop an agency from functioning. Given the general political inclinations of the contemporary G.O.P., this would be a tremendous victory. They don't want an N.L.R.B. at all, and they don't care for most other regulatory agencies, either. The D.C. Circuit decision is more than a gift of a minority veto on individual members of a commission; it's a minority veto on the very existence of venerable federal agencies. [The New Yorker, 10/16/13]