President Barack Obama names Deputy National Security Adviser Denis McDonough as the new White House Chief of Staff on Friday, January 25, 2013. He replaces Jack Lew.
WASHINGTON (CNN) — President Obama’s recess appointments to a federal agency– made without Senate confirmation– have been struck down by a federal appeals court as an unconstitutional use of executive power.
The three-judge panel unanimously concluded Friday three people named to the National Labor Relations Board lacked authority, because the presidential appointments were made while the Senate was technically in a “pro forma” session during the winter holiday break.
The case sets up a potential high-stakes Supreme Court fight between the executive and legislative branches.
Republican and Democratic lawmakers in the past have used the “virtual Congress” tactic to block unilateral appointments by the President when the Senate is away.
“We determine the Board issuing the findings and order could not lawfully act, as it did not have a quorum,” said the court.
Republicans had claimed the appointments to the NLRB created a panel that was overly pro-union, and this ruling could invalidate hundreds of findings issued over the past year. The administration is expected to file an appeal to the Supreme Court in coming months.
And the court’s conclusion also put in jeopardy the recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, a move also being challenged in a separate lawsuit.
“Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” said the judges from the U.S. Court of Appeals for the District of Columbia Circuit. “An interpretation of ‘the recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”
The White House said it believes Friday’s decision will not affect Cordray’s appointment, but did express displeasure with the court’s action.
“The decision is novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations,” said Jay Carney, White House Press Secretary. “So we respectfully, but strongly disagree with the rulings. There have been– according to the Congressional Research Service– something like 280-plus intra-session recess appointments by, Democratic and Republican administrations dating back to 1867. That’s a long time and quite a significant precedent.”
A year ago Obama had defended his move after Senate Republicans earlier blocked giving Cordray a floor vote.
“When Congress refuses to act and as a result hurts our economy and puts people at risk, I have an obligation as president to do what I can without them,” said the President in January 2012. “I will not stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve.”
Senate Republicans however applauded the court decision.
“The D.C. Circuit Court today reaffirmed that the Constitution is not an inconvenience but the law of the land, agreeing with the owners of a family-owned business who brought the case to the Court,” Senate Minority Leader Mitch McConnell said in a statement.
Some GOP lawmakers also accused the president of flip-flopping on the issue. When he was a senator, Obama criticized then-President Bush’s recess appointment of John Bolton as United Nations ambassador.
Cordray was named the same day as the three NLRB appointments, which gave the board a full panel for the first time in a year. Two of the people were Democrats, the other a Republican.
The lawsuit was brought by Noel Canning, a family-owned Yakima, Washington bottling company, which complained the NLRB unfairly ruled in favor of Teamsters Local 760 during contract negotiations. Company executives said the board lacked a binding quorum because the recess appointments made by Obama were not legal.
“Small-business owners throughout the country have suffered under the unabashedly pro-union decisions handed down by the NLRB,” said Karen Harned, executive director of the National Federation of Independent Business, which filed an amicus brief in the case. “They deserve to be protected from unconstitutional acts that exacerbate the NLRB’s devolution from a neutral arbiter between labor and employers to a pro-union government agency.”
The issue has sharpened tensions between the White House and Congress. The nation’s founders placed the power to make recess appointments in the Constitution to ensure government could operate, back when Congress did not meet year-round. Over the decades, presidents of both parties have used them for political and practical purposes.
Since May 2011, Republicans have been using a little-known procedure to keep the chamber in session, even when it was not really conducting any business– in order to stop the president from making recess appointments.
The legal basis comes from a 1993 Department of Justice brief saying the President should act only if the Senate is in official recess more than three days.
So, party leaders have arranged for a single Republican lawmakers to show up every three days and gavel the Senate to order, wait around for a while, gavel it to a close, then leave.
Legal experts have disagreed on both the tactical and timing procedures by the Senate, and whether the President has unilateral authority to override those legislative tactics.
The case decided Friday is Noel Canning v. NLRB (12-1115).
By By Bill Mears
CNN’s Jennifer Liberto contributed to this report.
