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.