The Washington Times
Friday, January 25, 2013
The three-judge panel’s ruling is a major blow to Mr. Obama. The judges ruled that the appointments he made to the National Labor Relations Board are illegal, and hence the five-person board did not have a quorum to operate.
But the ruling has even broader constitutional significance, with the judges arguing that the president’s recess appointment powers don’t apply to “intra-session” appointments — those made when Congress has left town for a few days or weeks. They said Mr. Obama erred when he said he could claim the power to determine when he could make appointments.
“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” the judges said in their opinion.
The judges said presidents’ recess powers only apply after Congress has adjourned a session permanently, which in modern times usually means only at the end of a year. If the ruling withstands Supreme Court scrutiny, it would dramatically constrain presidents in the future.
And the court ruled that the only vacancies that the president can use his powers on are ones that arise when the Senate is in one of those end-of-session breaks. That would all but eliminate the list of positions the president could fill with his recess powers.
White House dissent
“We respectfully but strongly disagree with the rulings,” he said.
But Noel Francisco, a lawyer at Jones Day who argued the case for the company that challenged the NLRB appointments, said the court had returned to the Constitution’s intent, which was to make the recess appointment an emergency power for use only when Congress was not available.
“Issues like this — it’s not about protecting the Congress from the president and the president from Congress,” Mr. Francisco said. “The Constitution draws these lines ultimately to limit the government to protect the people.”
In their ruling the judges said their duty is not to speed up the workings of government, but to hold to constitutional principles.
“If some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands,” the judges wrote.
The judges said the recess power was created for a time when Congress met only a few months out of the year, and was designed for the president to fill vacancies during the long periods when Congress was not meeting. In modern times, when Congress is almost always capable of meeting, the recess powers should be more circumscribed.
In the short term, the ruling invalidates one NLRB decision. But over the longer term it could invalidate a year’s worth of decisions by the independent agency, could undercut Mr. Obama’s new consumer watchdog agency set up in the 2010 Wall Street reform law, and could even call into question decisions made by some judges who were given recess appointments.