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Associated Press
President Obama is flanked by Richard Cordray, who led an agency by recess appointment.

3 Obama appointments fail constitutional muster

– President Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board, a federal appeals court ruled Friday in a far-reaching decision that could severely limit a chief executive’s powers to make recess appointments.

The decision of the U.S. Court of Appeals for the D.C. Circuit marked a victory for Republicans and business groups critical of the labor board.

If it stands, it could invalidate hundreds of board decisions over the past year, including some that make it easier for unions to organize.

When Obama filled the vacancies Jan. 4, 2012, Congress was on an extended holiday break. But GOP lawmakers gaveled in for a few minutes every three days just to prevent Obama from making recess appointments. The White House argued that the pro forma sessions – some lasting less than a minute – were a sham.

The court rejected that argument, but went even further, finding that under the Constitution, a recess occurs only during the breaks between formal yearlong sessions of Congress – not just any informal break when lawmakers leave town. It also held that presidents can bypass the Senate only when administration vacancies occur during a recess.

White House press secretary Jay Carney said the administration strongly disagrees with the decision and that the labor board would continue to conduct business as usual, despite calls by some Republicans for the board members to resign.

“The decision is novel and unprecedented,” Carney said. “It contradicts 150 years of practice by Democratic and Republican administrations.”

Under the court’s decision, 285 recess appointments made by presidents between 1867 and 2004 would be invalid.

The Justice Department hinted that the administration would ask the Supreme Court to overturn the decision, which was rendered by three conservative judges appointed by Republican presidents. “We disagree with the court’s ruling and believe that the president’s recess appointments are constitutionally sound,” the statement said.

The ruling also threw into question the legitimacy of Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, made on the same date, has been challenged in a separate case.

Carney insisted the court’s ruling affects only a single case before the labor board and would have no bearing on Cordray’s appointment. Obama on Thursday renominated Cordray for the job.

The case challenging the recess appointments was brought by Noel Canning, a Washington state bottling company that claimed an NLRB decision against it was invalid because the board members were not properly appointed. The D.C. Circuit panel agreed.

Obama made the recess appointments after Senate Republicans blocked his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.

But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for so-called pro forma sessions.

The three-judge panel flatly rejected arguments from the Justice Department’s Office of Legal Counsel, which claimed that the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.

The court ruled that during one of those pro forma sessions on Jan. 3, 2012, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.

GOP House Speaker John Boehner welcomed the ruling as “a victory for accountability in government.”

If the ruling stands, it would invalidate more than 600 board decisions issued over the past year.

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.

If Obama’s recess appointment of Cordray to the newly created consumer board is eventually ruled invalid, it could nullify all the regulations the consumer board has issued, many of which affect the mortgage business.

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