The U.S. Court of Appeals for the D.C. Circuit ruled on Friday that President Obama’s use of recess appointments to install three appointees to the National Labor Relations Board last January was unconstitutional.
It’s not the last you’ll be hearing about recess appointments in coming months.
What’s all the fuss about?
Let’s start at the beginning. Like many high-level positions, the Senate must confirm nominees to serve on the National Labor Relations Board. With one exception: The Constitution grants the president the power to make appointments when the Senate is in recess.
The NLRB had been hamstrung for years, according to The New York Times, beginning in 2008 when Democrats and Republicans blocked each other’s nominees and prevented almost anything from happening for 26 months. Obama recess-appointed two lawyers to the board in 2010, bringing it to the quorum needed to pass rules and regulations. When one of those appointments expired, the president used his recess appointment capability to appoint three people to the NLRB just a few days into 2012. “We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it,” Obama said on Jan. 4, 2012.
Obama used the same type of appointment to install Richard Cordray at the head of the Consumer Financial Protection Bureau. Republicans opposed the newly created agency's structure, and were blocking Cordray's nomination to prevent it from assuming its full powers. “I’ve got an obligation to act on behalf of the American people. And I’m not going to stand by while a minority in the Senate puts party ideology ahead of the people that we were elected to serve,” Obama said.
The recess appointments angered Republicans, who viewed them as an end-run around the Senate.
So, if it’s in the Constitution, what’s the problem?
Here’s the catch. The Senate had adjourned when the NLRB and CFPB appointments were made, but was still convening periodically for “pro forma” sessions (these sessions can be sparsely attended and as short as a few minutes).
On Jan. 6, the Justice Department said the situation was effectively a recess, and the president could exercise his appointment power to get the nominees through. But Republicans have argued that the move represented an unconstitutional break with the president’s authority.
The issue entered the courts when a Washington state-based bottler brought the case, Noel Canning v. National Labor Relations Board, which disputes a ruling the NLRB made and argues that it was invalid because the board lacked the quorum needed to make it, since the recess appointments themselves were invalid. Senate Minority Leader Mitch McConnell and 41 other Senate Republicans filed an amicus brief, a friend-of-the-court filing from an outside group, in September. “By declaring the Senate not ‘capable’ of performing its constitutional function and therefore in a de facto period of ‘Recess,’ even while the chamber decided to be in session repeatedly, the president usurped the Senate’s control of its own procedures,” the brief said.
What did the court rule?
On Friday, the U.S. Court of Appeals for the D.C. Circuit ruled that Obama’s use of recess appointments to install three members on the National Labor Relations Board last January was unconstitutional because Congress wasn’t technically in recess.
It’s a victory for Republicans. “The D.C. Circuit Court today reaffirmed that the Constitution is not an inconvenience but the law of the land,” McConnell said in a statement.
The administration is expected to appeal to the Supreme Court. “The decision is novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations, so we respectfully but strongly disagree with the rulings,” White House press secretary Jay Carney told reporters on Friday. Carney declined to comment on whether the administration would appeal the ruling, referring reporters to the Justice Department.
If Friday's ruling is upheld, it would invalidate much of the work performed by the NLRB for the past year.
What about the CFPB?
Good question. Friday's decision could threaten last year's work by the CFPB, as well, if Cordray's appointment is also found to be unconstitutional. The CFPB appointment is being challenged in a separate case. Meanwhile, Obama renominated Cordray to head the CFPB on Thursday, a day before the NLRB ruling was released.
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