Federal Court Slams Obama's Use of Recess Appointment Power

The president's bad week just got worse.

It’s been a bad week for Barack Obama, and things just got worse. On top of the growing scandals over the I.R.S. targeting conservative groups and the Justice Department snooping on journalists, the president has just received a major constitutional reprimand from the federal courts over his dubious exercise of executive power.

According to the Constitution, the president must seek the “advice and consent” of the Senate when filling certain government positions. The president may only bypass this confirmation requirement in those rare cases where a temporary appointment is needed to "fill up all vacancies that may happen during the recess of the Senate." This is known as the president’s recess appointment power.

In a decision handed down Thursday morning, the U.S. Court of Appeals for the 3rd Circuit ruled that Obama violated the Constitution by making a recess appointment to the National Labor Relations Board in 2010 when the Senate was not actually in recess. In an unprecedented move two years later, when the Senate was holding pro forma sessions for the precise purpose of denying him the lawful ability to make a recess appointment, Obama simply ignored this legal impediment and made four purported recess appointments anyway, including the addition of three members to the NLRB.

In its decision, the 3rd Circuit strongly rejected Obama’s unilateral action. “Nothing in the text of the Clause or the historical record suggests that it is intended to be a type of pressure valve for when the president cannot obtain the Senate‘s consent, whether that be because it has become dysfunctional or because it rejects a president‘s nominations,” the court held. Indeed, the opinion continued, under the government’s interpretation, “If the Senate refused to confirm a president‘s nominees, then the president could circumvent the Senate‘s constitutional role simply by waiting until senators go home for the evening.” So much for the separation of powers.

This is the second major ruling against Obama’s recess appointments. In January, the U.S. Court of Appeals for the District of Columbia Circuit voided all three of the president’s 2012 additions to the NLRB. As Chief Judge David Sentelle held in that case, Obama’s actions “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.”

These are strong arguments against Obama’s behavior. The recess appointment power was designed to act as a sort of safety net covering the long stretch between formally enumerated Senate sessions—not to help the president and his nominees duck a difficult Senate confirmation process. As University of San Diego law professor Michael Rappaport, one of the leading authorities on the Appointments Clause, has observed, “If the original meaning were followed... the President could only make recess appointments during the single annual intersession recess and only for vacancies that arose during that recess.”

Last month, the Obama administration appealed the D.C. Circuit’s ruling to the U.S. Supreme Court, arguing that it would “dramatically curtail the scope of the President’s authority.” Today’s decision by the 3rd Circuit increases the already strong chance of the justices agreeing to take the case.

They should take it—and the president should lose. Obama’s impatience with the Senate is no excuse for his infidelity to the Constitution.

Editor's Note: This article originally misstated the dates of the president's recess appointments.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Pro Libertate||

    Really, it's hard not to use "Obama" and "unconstitutional" in a sentence.

  • Iris56||

    til I saw the draft that said $9902, I be certain that my mother in law woz actually erning money in their spare time at their computer.. there neighbor had bean doing this for only about six months and a short time ago cleard the mortgage on their appartment and purchased a great new Lotus Esprit. I went here, http://www.fox86.com

  • mgd||

    A mortgage on an apartment? Buh?

  • KPres||

    He's an unconstitutional scholar!

  • DarrenM||

    Obama’s impatience with the Senate is no excuse for his infidelity to the Constitution.

    Since when was an excuse necessary? What matters is what he can get away with and he can't really know that until he tries. He's like a little kid.

  • wingnutx||

    Racists.

  • Silly ol' Bear||

    Anybody who disagrees with Obummer MUST be racist! My gosh, who would EVER accuse him of doing anything wrong? Liberals never will, he's their god! Whatever....

  • Aresen||

    You must be new here.

  • Kroneborge||

    "You must be new here." +1

  • Fist of Etiquette||

    In the face of an obstinate Congress, what can he do? Trying to convince the members would be unseemly and require he interact with congressmen on an interpersonal level. There's nothing else to be done.

  • Pro Libertate||

    I first read that as "obsolete Congress."

  • Aresen||

    Though your first read was an accurate description of Congress, it was not FOE's text.

  • kinnath||

    This is the happiest week that I've had since Barry was sworn in.

  • GregMax||

    Yeah, but what makes me sad is that he's gonna be there FOUR MORE YEARS!
    Man we've come down a long way as far as leadership integrity and talent go . . .
    Or, maybe they've always been douche bags.

  • Rights-Minimalist Autocrat||

    Boooooosh!

    /shriek

  • igotnuthin||

    Obama is not a fan of Separation of Powers...

    ...just Power.

  • Sevo||

    "his dubious exercise of executive power."
    I believe the root word of "dubious" has to do with doubt, uncertainty.
    There's nothing "dubious" here; it's flat out unconstitutional.

  • Raston Bot||

    Wait, so two different appeals courts (DC Circuit, 3rd Circuit) handed down the same sentence? Why would the Supreme Court take it?

  • LTC(ret) John||

    I think they refuse to grant cert until a split of authority, normally. But when it is something like an actual, enumerated issue in the Constitution, they may go ahead, take it up and give a thundering kick up the POTUS' backside.

  • Sevo||

    "they may go ahead, take it up and give a thundering kick up the POTUS' backside."

    Or Roberts may find it can be read as a tax if you squint just right.

  • Mensan||

    Recess appointments while the Senate is in session are legal because it's a tax.
    [/johnroberts]

  • Sevo||

    Beat ya to it. Neener, neener, neener!

  • wareagle||

    reading the headline, my first thought was "why would anyone think Obama gives a shit about that?"

  • Homple||

    My thought as well.

  • Bubba Jones||

    They should void any salary paid to the unconstitutional appointees as well.

    They should be held accountable for their actions.

  • BigT||

    Those loans should be repaid with interest. Not that interest rates are very substantial.

  • Sevo||

    OK, does it have to go to the Supremes before the appointees don't bother showing up for work and collecting the pay?
    IOWs, who tells these guys not that they're fired, but that they've never been hired and to get lost?

  • Invisible Finger||

    Obama's legacy is going to be nothing but an administration trying to see how much it can get away with. Yes, there will be shitty policies and programs that will endure from this (same as every admin), but those are part and parcel of a man who's only guiding principle seems to be gamesmanship.

    Not that gamesmanship hasn't gone on before, but this seems to be the ONLY thing he really cares about. That's on par with Nixon.

  • Hugo S. Cunningham||

    The Democratic majority in the Senate could vote to change the Senate's internal rules, eg. to allow a simple majority to call up a nominee for confirmation. By tradition, they are supposed to stick with the rules they agreed to on the first day of the new Congress, but that (unlike the concept of recess) is not written in the Constitution. Just as Democrats invented pro-forma sessions to block G.W. Bush from recess appointments, so Republicans considered a "nuclear option" to overcome Senate filibuster rules.

    If Senate Democrats did use majority confirmation votes to reanimate an aggressive NLRB, the next possible standoff might be a refusal of the Republican House to fund NLRB next year.

  • Marc F Cheney||

    This is Barack Obama. Do you see?

    This is Barack Obama becoming. Do you see?

    This is Barack Obama's one true form. Do you see?

  • Aresen||

    Obama’s impatience with the Senate is no excuse for his infidelity to the Constitution.

    If he can't screw around with Congress, he can still screw around with the Constitution.

  • Incredulous||

    This decision is meaningless without consequences. At the bare minimum, any rulings by the NLRB when unconstitutional appointments were in effect should be ruled invalid. It would also be appropriate to start impeachment proceedings against the President but I doubt that will happen since impeachment-worthy misconduct has become routine for Obama.

  • Sevo||

    That's what I was getting at up-thread. OK, the court says phooey on you. And the people appointed keep showing up for work, making rulings and getting paid.
    Do we need US marshals to perp-walk 'em off the job?

  • ||

    This really gets back to the old classic: "John Marshall has made his decision; now let him enforce it!"

    Have all the rulings you want. What the fuck would Obama care when they come a couple months shy of when the appointments would expire had they been legal in the first place and furthermore have no consequences attached? He got what he wanted and needed out of them either way.

  • West Texas||

    L'etat c'est Barry, n'est–ce pas?

  • GLK||

    It's about time Obama's wings got clipped. For the longest time he's been given a free pass to manage White House like a King. Perhaps the AP scandal will also make the Media realize they've been at the receiving end of the Aesop fable, The Farmer and the Viper.

  • space junk||

    This wont change anything by itself when it comes to Obama's tyrannical policies, contempt for the Constitution, or arrogance in general. This will just be another issue that MSM conveniently ignore. And Jay Carney (resident lying donkey at 1600 Pennsylvania Ave.) will just come out and say "... that stuff happened a long time ago. The President had every intention of adhering to the Constitution. The courts just got it wrong!"

  • Sonderegger||

    As Chief Judge David Sentelle held in that case, Obama’s actions “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.”

    These are strong arguments http://www.vendrecasquette.com/ against Obama’s behavior. The recess appointment power was designed to act as a sort of safety net covering the long stretch between formally enumerated Senate sessions—not to help the president and his nominees duck a difficult Senate confirmation process. As University of San Diego law professor Michael Rappaport, one of the leading authorities on the Appointments Clause

  • Bree||

    Hi, I'm interested in commenting on articles. I'm a graduate student and I'd appreciate your help! Please take my survey!

    http://www.surveymonkey.com/s/M7VL27K

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement