Obama's 'Abuse of Power' Argument on Recess Appointments

A ruling by a federal court today raised big questions about constitutional law

January 25, 2013, 5:10 PM

Jan. 25, 2013 -- This is a very big deal in constitutional law and contemporary politics.

The U.S. Appeals Court for the District of Columbia handed down a major decision today, one that shifts the modern balance of power between the president and Congress—and hands a stinging political defeat to President Obama and his allies in Big Labor.

The battleground: The National Labor Relations Board—the powerful independent agency that's overseen the contentious relations between Big Business and Big Labor in America since 1933. The NLRB has long been a partisan political battleground—Democratic presidents usually try to pack the board with union allies, Republican presidents usually make business-friendly appointments.

The issue: Are President Obama's three appointments to the NLRB legal? Did he have the constitutional authority to make those appointments in the manner he did—or hid he exceed his power as president?

The court's answer: Obama acted unconstitutionally.

The background: Last January, after years of political combat over the NLRB and facing fierce Republican resistance to his agenda, President Obama made three appointments to the NLRB. Under the law, presidential appointments to the board must be confirmed by the Senate. But this time, Obama tried an end-run around Congress: a "recess appointment."

Presidents have always made "recess appointments"—because the Constitution provides for them. It's right there in Article II: "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate."

President George W. Bush made 171 recess appointments. President Bill Clinton made 139. Heck, even President Andrew Johnson made at least 14 recess appointments.

But—what's a recess?

Is it when the Senate adjourns at the very end of a session—usually at the end of each calendar year?

Or is it when the Senate adjourns for a few days or a few weeks during the course of a year—when senators flee Washington during spring break or summer vacation, for instance?

President Obama, like presidents for 150 years before him, claims that any time the Senate has stopped conducting business for more than just a few days—that's a recess.

Once again: This is not something President Obama invented. Modern presidents have long used this weapon in their never-ending struggles with Congress.

President Bush made 29 recess appointments when the Senate was adjourned for 14 days or less—including John Bolton, the controversial US Ambassador to the United Nations, who was blocked by Senate Democrats. ("It's the wrong thing to do," said then-Sen. Barack Obama, D-Ill., about Bush's move. Things always look a lot different from the other end of Pennsylvania Avenue.)

So: Today, the D.C. federal appeals court said presidents have to stop all this flim-flammery about the word "recess."

The three-judge panel focused on a different word in that constitutional clause: "the."

Look again. The Constitution says presidents can fill up vacancies "that may happen during THE recess of the Senate."

In the court's opinion, the only recess that counts is the official and formal recess declared at the end of every congressional session—not summer break or spring break or Christmas break or all the other breaks the Congress has during the year. The last one--that, the judges declared, is "THE recess." And that's all that matters:

"As a matter of cold, unadorned logic, it makes no sense to adopt the [administration's} proposition that when the Framers said "the Recess," what they really meant was "a recess." This is not an insignificant distinction. In the end it makes all the difference."

It seems simple. But today's ruling conflicts with several other appeals court rulings touching on the same subject from around the country. And it contradicts the practice of more than half of the American presidents. This one is sure to head to the Supreme Court.

In the meantime, Republicans in the Senate once again have the upper hand in the struggle over the balance of power between labor and business on the NLRB.

And one more thing: perhaps now senators might be able to bring to an end what is one of the weirdest of all Washington rituals: The 30-second session, when the Senate is gaveled in and out of order by one member in an empty chamber—just to say they were there, "conducting business," so the president can't make a "recess" appointment. Even on the day Washington was struck by an earthquake in 2011, and the Capitol evacuated, the Senate came to order for 22 seconds, one senator present, in a conference room in the basement of the Postal Square building next to Union Station.