The U.S. Court of Appeals for the D.C. Circuit ruled against President Obama and found that his recess appointments to the National Labor Relations Board were unconstitutional. The plethora of lawsuits that the decision may foster, the chaos in the legal and regulatory systems, and the conflict in the appeals court have this decision headed straight for the Supreme Court.
The ruling conflicts with those found by appeals courts in Atlanta and San Francisco and could setup a request to have the Supreme Court decide the issue. This was the first time a recess appointment had been challenged and overturned in court. The landmark ruling found that: a) there is only one recess session per year and b) the Senate was not in recess. The ruling could invalidate the three appointments made by Obama to the NLRB and could invalidate the decisions made by the board. According to legal specialists, the narrow ruling of the court could virtually eliminate the practice of presidents making recess appointments.
Obama and the Democrats have no one but themselves to blame for this embarrassing political turn of events. It was the Democrats who created the sham pro forma parliamentary procedure to keep the Senate "in session" to prevent former President Bush from making recess appointments. Bush honored the administrative procedure; however Obama charged ahead and ignored the tactic created by his own party.
Forty-two Republicans who filed friends of the court briefs must now be careful that they have opened up a can of worms. The NLRB made over 200 decisions since the three appointments were made and just like the case brought by the bottling company Noel Canning of Yakima, Washington, all of those cases can be overturned. More importantly, litigation and defense lawyers can go back in time and based on this precedent challenge the decisions of judges who were appointed during prior recess sessions. John Elwood, a Bush administration lawyer suggested, "you know there are people sitting in prisons around the country who will become very excited when they learn of this ruling." Gary Chaison, a labor professor at Clark University in Worcester, Massachusetts said the labor board decision is "going to create chaos."
The court not only said that recess is strictly defined by the Constitution, but recess appointments are limited to those that "arise" during that period. Presidents have made appointments during recess sessions for years. The practice goes back to at least 1867. In recent years, President Clinton made 139 recess appointments and President Bush made 171. Obama has made 32 recess appointments. President Reagan holds the record with 243 recess appointments. This ruling in essence says that some, if not all of those appointments were unconstitutional unless they happened between sessions of Congress and the openings occurred during that period. The Huffington Post reported, "under the court's decision, 285 recess appointments made by presidents between 1867 and 2004 would be invalid."
The court ruling could also impact the work of the Consumer Financial Protection Bureau. The law requires the agency to have a director before it can exercise its power. Richard Cordray, the agency director, was an Obama recess appointment. If the court invalidates Cordray’s appointment then all of the work done by CFPB would be invalidated, including its recent regulations targeting the mortgage industry. Andrew J. Pincus, an attorney who represents the Chamber of Commerce explained that the court decision could result in "lots of taxpayer money wasted on things that potentially turn out to be invalid."
Obama and the Department of Justice have not announced how they intend to respond to the court's decision. Jay Carney, White House press secretary, stated, "the decision is novel and unprecedented, and it contradicts 150 years of practice by Democratic and Republican administrations." Elwood, who handled recess appointment issues for the Justice Department during the administration of President George W. Bush, noted, "this is certainly a red-letter day in presidential appointment power."
Whatever the final disposition as The NY Times pointed out this is "a blow to the administration and a victory for Mr. Obama's Republican critics."