President Obama suffered a serious embarrassment today when the U.S. Court of Appeals for the District of Columbia unanimously ruled that he overstepped his constitutional powers when he used recess appointments to name three members to the National Labor Relations Board on January 4th, 2012.
Although the Senate was holding pro forma sessions, Obama said that it was really in recess because it was conducting no business over the 20-day Christmas break. In other words, Obama sought to establish the principle that he, not the Senate, was entitled to decide when the Senate was in session.
Were he to prevail in this assertion of presidential power, it would have gutted the Senate’s power to advice and consent to nominations to executive posts and thus eliminated one of the Constitution’s carefully designed checks on executive power.
The administration will most likely appeal to the Supreme Court. But that Court could let the lower court’s decision stand simply by refusing to grant a writ of certiorari, which is necessary to appeal most cases to the high court. The fact that the ruling from a three-judge panel was unanimous greatly increases the chances that the court will not “grant cert,” to use the jargon of the court.
Assuming this decision stands, all the decisions of the NLRB since January 4th, 2012, will be void. His appointment of Richard Cordray head to the new, and very powerful Consumer Financial Protection Bureau, made at the same time, and being challenged in a separate case, would also fall.
Presidents have increasingly used recess appointments to get around Senate obstruction, usually a filibuster. But this use of the power was brazen as Obama had only just nominated the men and the Senate had not had any time in which to act.
By John Steele Gordon
This article originally appeared in Commentary magazine.