Supreme Court Set To Review Obama Recess Appointments

The U.S. Supreme Court
The U.S. Supreme Court

While the rulings in Fisher and Windsor justifiably garnered the most attention this week, it is important to note an important but little discussed decision to accept a case. President_Barack_ObamaI have previously testified and written about President Barack Obama’s use of recess appointments, which I viewed as flagrantly unconstitutional. Recently, the D.C. Circuit agreed with that view and found that the Obama Administration had violated the recess appointment powers. Then a second appellate court has joined that view, the United States Court of Appeals for the Third Circuit. I have two law review articles coming out on these appointments and more broadly the abuse of recess appointment powers in modern presidencies. See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review ___ (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review ___ (2013). The case accepted for review is Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. 2013).

A year ago, I testified in Congress that the recess appointments of President Barack Obama were unconstitutional. Those four appointments by President Obama included Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster. While I liked Cordray, I testified that the appointments were in my opinion clearly unconstitutional. The D.C. Circuit has now agreed with that view and the panel unanimously ruled that Obama violated the Constitution with his circumvention of Congress.

In my prior testimony, I discussed how Obama — and by extension the Office of Legal Counsel — violated both the text and the purpose of the recess appointments clause. It was an interesting hearing with other experts testifying that the appointments were constitutional — supported by the January 6, 2012 opinion of Assistant Attorney General Virginia Seitz and the Office of Legal Counsel (OLC). I was very critical of that opinion.

Throughout history, the interpretation of this Recess Appointments Clause has evolved to the increasing benefit of the Executive Branch – allowing the Clause to be used to circumvent congressional opposition. Indeed, the debate today is generally confined to the question of what technically constitutes a “recess” for the purposes of the Clause, treating as settled the question of whether the Clause can be used to fill a position that the Senate has chosen to leave vacant. In my view, the Clause is now routinely used not only for an unintended purpose but a purpose that is inimical to core values in our constitutional system. I have long favored the original interpretation of the Clause: that it applies only to vacancies occurring during a recess. This interpretation is truer to the Constitution and would avoid many of the controversies of modern times. I readily admit that I am in the minority on that view, but I discuss the original and later interpretations to demonstrate how far we have moved from the plain meaning of the Clause. Frankly, I believe that our system would be far better off under the original meaning of the Clause, which would have avoided many of the controversies of modern times.

In a 2-1 panel decision, the Third Circuit is different in some respects from the earlier D.C. Circuit opinion in Noel Canning v. NLRB. It was narrower in rejecting “intrasession” appointments — recesses during a given session of Congress. However, it did not address pre-existing recesses or contain the broader historical analysis of the D.C. Circuit. It also rejects the clarity in the language of the Clause: “In short, the natural meaning of recess does not help us decide between intersession breaks and intrasession breaks of a fixed duration, but the relevant context does undermine the Board‘s current position.”

The opinion was written by Judge D. Brooks Smith and the dissent came from Judge Joseph. A Greenaway Jr. Greenaway objects that “The Majority attempts to displace the absurdity of its holding by showing that my standard also yields absurd results.”

He adds:

An empty office is an empty office. It makes no sense that the Framers would have differentiated between intrasession and intersession recesses in effectuating the purpose of the Recess Appointments Clause. See Evans, 387 F.3d at 1226 (“The purpose of the Clause is no less satisfied during an intrasession recess than during a recess of potentially even shorter duration that comes as an intersession break.”). The atrophy of agencies and other offices caused by the Senate‟s absence did not then, and does not now, depend on whether the Senate is unavailable due to an intersession recess or intrasession recess — all that matters is the length of time that the Senate is away from its usual business, unable to provide advice and consent, while vacancies persist.

Both opinions are worthy of reading and present compelling arguments, though I obviously agree with the majority. My own analysis goes further than both the D.C. Circuit and the Third Circuit.

The Supreme Court stepped into an important constitutional dispute Monday between President Obama and congressional Republicans over the chief executive’s power to make recess appointments.

The justices said they will review a federal appeals court ruling that found Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board.
The high court case is the latest chapter in the partisan political wrangling between GOP lawmakers and Obama over appointments to the labor board and the Consumer Financial Protection Bureau. Republicans want to rein in both agencies’ powers.

The Constitution gives the president the power to make temporary appointments to fill positions that otherwise require confirmation by the Senate, but only when the Senate is in recess.

At issue for the Supreme Court: What constitutes a congressional recess and does it matter when a vacancy occurs?
George Washington was the first president to make a recess appointment and Obama’s predecessors back to Ronald Reagan made significantly more such appointments than has Obama. On three earlier occasions, federal appeals courts upheld the appointments.

But the nature of the president’s actions, during brief Senate breaks that Congress explicitly said were not formal recesses, is driving the current legal controversy.

The case stems from Obama’s decision to fill the three NLRB vacancies on Jan. 4, 2012, with Congress on an extended holiday break. At the same time, however, the Senate held brief, pro forma sessions every few days as part of the Republicans’ explicit strategy of keeping Obama from filling vacancies through recess appointments. The president also used a recess appointment to install Richard Cordray as head of the financial protection agency, which the GOP had blocked for a year and a half.

Businesses and trade groups quickly went to court to challenge decisions made by the NLRB. Noel Canning, a Washington state bottling company, claimed an NLRB decision against it was not valid because the board members were not properly appointed and that the board did not have enough members to do business without the improperly appointed officials.

In January, the U.S. Court of Appeals for the D.C. Circuit agreed in a sweeping ruling. A panel composed of three Republican appointees said that the only congressional break that counts as a recess is the one that occurs between formal year-long sessions of Congress. Two of the three judges also said that only positions that come open during a congressional recess can be filled through a recess appointment. The court did not address the issue of how short a break can count as a recess.

If it stands, the ruling could invalidate hundreds of board decisions, and call into question the legitimacy of regulations issued by the Consumer Financial Protection Bureau, many of which affect the mortgage industry.
The NLRB also would effectively be shut down as a ruling against the administration would leave the board with only one member, and it needs three to conduct business.

Obama used the recess appointment to install Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, 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.

The parties’ roles were reversed when a Republican President George W. Bush was in the White House and Democrats controlled the Senate in the final two years of Bush’s presidency. Then, Senate Majority Leader Harry Reid employed the same tactic of convening the Senate every few days to keep Bush from filling vacancies through recess appointments. Unlike Obama, Bush did not press the issue.

Obama has made relatively few recess appointments, 32 in his four-plus years in office, according to the Congressional Research Service. Bush made 171 such appointments and President Bill Clinton filled 139 posts that way in their eight years in office, the research service said.

Since the Noel Canning ruling, a second appeals court also has weighed in against the administration. The 3rd U.S. Circuit Court of Appeals in Philadelphia said in a 2-1 decision that recess appointments can be made only between sessions of the Senate, not any time the Senate is away on a break. That case dealt with an earlier Obama appointee to the NLRB, whose nomination was blocked by the Senate.

Canning could represent a long overdue opportunity for the Court to alter the trend toward judicial avoidance in such disputes — a trend interrupted by the D.C. and Third Circuit decisions.

54 thoughts on “Supreme Court Set To Review Obama Recess Appointments”

  1. This Obama is toast! but what will happen is that he will only have yet another chance to install more of his cash cronies into office. So what’s the point?

  2. I’ve been a bit under the weather but thought this deserved a share.

    You all know about the voter rights rollback, but there was also a chilling decision for candidates.


    In an unsigned order entered one day before the Shelby County decision, the Supreme Court declined to hear Nader’s own appeal from a decision of the District of Columbia Court of Appeals. The decision permits the law firm Reed Smith LLP to collect $81,102.19 in litigation costs it requested from a Pennsylvania state court after challenging the nomination papers Nader filed there, as an independent candidate in the 2004 presidential election.

    “Requiring candidates to pay litigation costs to private parties who challenge their nomination petitions is no different from requiring voters to pay poll taxes,” Nader said. “Time and again, the Supreme Court has held that states may not impose mandatory financial burdens on candidates or voters as a condition of their participation in elections.”

    The Pennsylvania decision was the first time in American history that a candidate was ordered to pay such costs. As Pennsylvania Supreme Court Justice Thomas Saylor concluded in a dissent that has never been rebutted, the majority misread the applicable statute, which only authorizes the imposition of costs against challengers, not defending candidates. Further, the Justices in the majority failed to disclose that Reed Smith had previously given each of them thousands of dollars in campaign contributions, while majority opinion author Justice Sandra Schultz Newman failed to disclose her acceptance of a $5,000 contribution from Reed Smith while the case was pending. Finally, then-Chief Justice Ralph Cappy, who voted with the majority, failed to disclose that Reed Smith was representing him as his defense counsel in a state ethics investigation during the proceedings.

    Nader said these blatant conflicts of interest required not only disclosure but recusal.

  3. Dog,

    My bad. That thread isn’t about the VRA decision although it mentions it. It’s fair game for a GB, however, I’ve already got another topic in the works.

  4. Yeah, BarkinDog posed the very first comment on that posted topic about Texas University Admissions policy and asked Turley to discuss the Voting Rights Act case of Shelby County. BarkinDog done gone South now.

  5. You know, the topic of the blog failing to deal with the Voting Rights Act case might be just something that we can do without. Perhaps Turley and his pals will take it up later. Like its not really news now. No. What the heck, I do need to go vote and I don’t have an ID. Forget it pal. Go home an vote for your favorite dog.

    [music] Don’t ask me I don’t give a damn
    Nest stop is Viet Nam.
    And its one two three, what are we fighting for?
    Ain’t no time to wonder why,
    Whoopee we are all gonna die.
    -Country Joe and the Fish

  6. aY HELL lets let it go. We don’t need no discussion of the Voting Rights of you and me. As long as they just discriminate against blacks. Right. But what if they went after Episcopalians or Jews or American Indians? Oh. But like in Blazing Saddles movie: Not The Irish.

  7. Well with the two additional Supreme Court cases on Voting Rights, discussed above, it becomes even more IMPORTANT.

  8. I am thinking that the blog does not wish to discuss the Shelby County decision and the two subsequent decisions of the Supreme Court which outlaw your voting rights. Why? Maybe because they were lame and not they don’t want to own up to it. Or, they don’t want to piss off the Court and criticize them. Probably that. Somebody wants to be on the DC Court of Appeals.

  9. Sometime on this blog. The Dredd Scoot decision of the 21st Century might be a Topic. Shelby County v. Holder. Big case. Your right wing Supreme Court in working order.

    On the other hand, what the blog might do is ignore this case even further. The Dogs are wrong.

  10. Here is another Supreme Court development in the Voting Rights Act case and two new cases by the Big Court:

    Supreme Court, in Voting Rights Act follow-up, wipes out key Texas rulingsLike Dislike 0 0 0
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    Christian Science Monitor Warren Richey 2 hours ago
    Voting Rights ActTexas
    Two days after invalidating a key section of the 1965 Voting Rights Act, the US Supreme Court wiped out two important rulings under that now-vanquished section that had blocked a new voter ID law and required more generous minority election districts in Texas.

    The high court took the action Thursday in two brief orders in the pending cases of Texas v. US (12-496), challenging state-wide redistricting plans, and Texas v. Holder (12-1028), challenging a new law requiring voters to show photo ID before casting a ballot. Latinos had challenged the redistricting plans as attempts to weaken their political influence, and Attorney General Eric Holder had criticized the voter ID laws as a “poll tax.”

    Both measures, backed by Republican lawmakers, had been blocked by judicial panels in Washington acting pursuant to their authority under Section 5 of the Voting Rights Act (VRA). Until Tuesday, that section of the law had required certain states and jurisdictions that had histories of discrimination – including Texas – to submit proposed changes in election rules and procedures to Washington for pre-approval.

    RECOMMENDED: How much do you know about the US Constitution? A quiz.

    On Tuesday, in a 5-to-4 vote, the high court invalidated a closely related portion of the VRA in a ruling that effectively ended all coverage under Section 5.

    That set the stage for Thursday’s orders. After vacating the earlier decisions, the Supreme Court remanded both cases to the lower courts for further consideration in light of the VRA ruling.

    What happens next is unclear.

    Want your top political issues explained? Get customized DC Decoder updates.

    Shortly after the decision on Tuesday, Texas Attorney General Greg Abbott announced that the state’s new voter ID law would immediately take effect. He also said that the state’s challenged redistricting maps “may” also take effect without prior approval from Washington.

    Last week, Texas lawmakers approved voting districts used in the 2012 election that had been authorized by the three-judge panel. So any action by state officials to resurrect the old 2011 districts (struck down by the court in August) would be a controversial move.

    In its order Thursday, the Supreme Court noted that at least one of the parties to that case had suggested that the redistricting case was now moot.

    The court’s action does not insulate Texas and the earlier challenged provisions from judicial review. Anyone seeking to invalidate the voter ID law plan or a redistricting plan will be required to rely on Section 2 of the Voting Rights Act.

    That section allows individuals, organizations, and the government to file suit to fight discrimination or discriminatory voting changes. It also provides for federal injunctions to block discriminatory provisions prior to an election.

    How these provisions play out in Texas in the weeks and months ahead may provide the first test of what the future looks like under the new stripped-down version of the Voting Rights Act.

    RECOMMENDED: How much do you know about the US Constitution? A quiz.

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