In a case freighted with major constitutional implications, a federal appeals court on Friday overturned President Obama’s controversial recess appointments from last year, ruling he abused his powers and acted when the Senate was not actually in a recess.

By Stephen  Dinan

The Washington  Times

Friday, January 25, 2013

Richard Cordray stands left as President Obama announces in the State Dining Room of the White House on Jan. 24, 2013, that he will re-nominate Cordray to lead the Consumer Financial Protection Bureau, a role that he has held for the last year under a recess appointment, and nominate Mary Joe White to lead the Security and Exchange Commission (SEC). (Associated Press

  • Decision  casts heavy shadow over labor board’s authority
In a case freighted with major constitutional implications, a federal   appeals court on Friday overturned President Obama’s controversial  recess appointments from  last year, ruling he abused his powers and  acted when the Senate  was not actually in a recess.

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

White House press secretary Jay  Carney called the ruling “novel and  unprecedented,” and said it contradicts  150 years of practice by  presidents of both parties.

“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.

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