WASHINGTON – A federal appeals court ruled Friday that President Obama violated the Constitution when he sidestepped the Senate to fill open spots on a labor relations panel, in a major setback for the president.
The suit had been brought by a local business in Washington state challenging the National Labor Relations Board. Supported by dozens of Senate Republicans, the case argued the president didn’t have the power to make three appointments to the NLRB.
Attorneys for the Obama administration argued that he had the authority because the Senate was in recess.
But a three-judge panel for the Court of Appeals in the District of Columbia said the appointments were not valid because the Senate was not officially in recess. If the decision stands, it could invalidate hundreds of board decisions.
“Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in ‘the Recess,’” the panel said.
The court said the president could only fill vacancies with the recess appointment procedure if the openings arise when the Senate is in an official recess, which it defined as the break between sessions of Congress.
“Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” a panel said.
Republican lawmakers lauded the decision. “Today’s ruling reaffirms that the Constitution is above political party or agenda, despite what the Obama Administration seems to think,” Sen. Orrin Hatch, R-Utah, said. “With this ruling, the D.C. Circuit has soundly rejected the Obama Administration’s flimsy interpretation of the law, and will go a long way toward restoring the constitutional separation of powers.”
The case is a test of the White House’s authority to bypass Congress’ power to block nominations. Recess appointments have a shelf-life of two years.
The ruling is an embarrassing blow to the Obama administration and could also call into question his recess appointment of Richard Cordray as head of the Consumer Financial Protection Bureau.
White House attorneys are expected to appeal the decision to the U.S. Supreme Court, but if it stands, it means hundreds of decisions issued by the board over more than a year are invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.
On Jan. 4, 2012, Obama appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the NLRB, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.
Obama also appointed Cordray on the same day.
Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.
But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for so-called “pro forma” sessions.
GOP lawmakers used the tactic — as Democrats had done in the past – specifically to prevent the president from using his recess power to install members to the labor board. The White House argued that the pro forma sessions — some lasting less than a minute — were a sham.
The three-judge panel, all appointed by Republican presidents, ruled that during one of those pro forma sessions on Jan. 3, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.
The court’s decision is a victory for Republicans and business groups that have been attacking the labor board for issuing a series of decisions and rules that make it easier for the nation’s labor unions to organize new members.