President Obama’s recess appointments to the National Labor Relations Board violated the Constitution, a federal court of appeals ruled today, also raising questions about Obama’s pick for head of the Consumer Financial Protection Board.
The court called the appointment of three members to the National Labor Relations Board in January 2012 “an unconstitutional act,” because it took place when the Senate was in an “intrasession” recess, rather than an “intersession” recess. President Obama appointed Richard Cordray to be head of the CFPB at the same time.
The recess was considered intrasession because of pro-forma sessions that Republican senators held during the Senate’s recess that month. Washington College of Law Professor Stephen Vladeck characterized those sessions as “congressional dysfunction and congressional obstructionism,” as they prevented the president from making his pick for those positions.
“I think the point is that Congress should not be actively trying to thwart the president’s appointment power,” Vladeck told ABC News.
In defense of his appointments that day, White House spokesperson Dan Pfeiffer wrote in the White House blog,
“The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running.”
The court took issue with that, citing a 1976 case on campaign finance law:
“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. The checks and balances that the Constitution places on each branch of government serve as ‘self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.’”
The White House strongly disagreed with the court’s decision, calling it “novel and unprecedented.”
“It contradicts 150 years of practice by Democratic and Republican administrations,” White House Press Secretary Jay Carney told reporters at the daily press briefing. “So we respectfully but strongly disagree with the rulings.”
Carney was adamant that the decision would have limited implications. “If you look at the case, the court decided a case brought by a specific company, and the decision applies to that case. It does not apply more broadly than that,” he said.
“The decision that was put forward today had to do with one case, one company, one court. It does not have any impact… on [the NLRB's] operations or functions or on the board itself. It has no bearing on Richard Cordray, and we, as I said, strongly disagree with it,” he added.
The Justice Department pushed back on the ruling.
“We disagree with the court’s ruling and believe that the president’s recess appointments are constitutionally sound,” a DOJ spokesperson said.
Republicans praised the ruling today.
House Speaker John Boehner called it “a victory for accountability in government.”
“The Obama administration has consistently used the NLRB to impose regulations that hurt our economy by fostering uncertainty in the workplace and telling businesses where they can and cannot create jobs,” Boehner wrote. “Instead of operating under a shroud of controversy, the NLRB should meet the highest standards of transparency, starting with having its members approved by the people’s representatives.”
Senate Minority Leader Mitch McConnell said the decision “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.”
Sen. Orrin Hatch said the court’s ruling “will go a long way toward restoring the constitutional separation of powers.”
“Today’s ruling reaffirms that the Constitution is above political party or agenda, despite what the Obama Administration seems to think,” Hatch, R-Utah, wrote in a statement. “This wasn’t an activist decision or legislating from the bench. This was a court holding what the Constitution says – that a President may make a recess appointment only if the vacancy he would fill and the appointment occur during the same intersession recess.”
Boehner, Hatch and McConnell were part of a group of lawmakers who submitted an amicus brief to the case.
Executive Director of the NFIB Small Business Legal Center Karen Harned said her group was “thrilled” by the Court’s ruling.
“Small-business owners throughout the country have suffered under the unabashedly pro-union decisions handed down by the NLRB,” Harned wrote in a statement. “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.”
Georgetown Law Professor Susan Low Bloch said this ruling is important and that the case is likely to go to the Supreme Court.
“I see this as part of the larger battle between the president and the Senate on the whole confirmation process,” Bloch told ABC News Friday, “which that’s not just administrative agencies but judicial appointments, and it’s a very important issue.”
Vladeck agreed the case would be important for President Obama.
“If left undisturbed it will only encourage more of the shenanigans by Congress and the pro-forma sessions that precipitated this crisis in the first place,” Vladeck said. “I suspect that if the [Obama] administration does appeal this decision that will be one of their central points.”
Both professors agreed a final ruling against the constitutionality of the NRLB appointments could have implications for Cordray’s time as head of the CFPB and regulations placed on the financial sector during his tenure. President Obama nominated Cordray to serve a second term as CFPB director yesterday, renewing the Congressional battle over Cordray’s confirmation.
A separate case against the government challenging Cordray’s appointment was filed this summer. The court has not yet reached a decision in that case.