Supreme Court Takes Up Challenge To Obama’s Appointment Authority

Supreme CourtPresident_Barack_ObamaRecently, I testified on the concentration of authority in the Executive Branch and an array of unconstitutional acts committed by President Barack Obama in the circumvention of Congress. For prior columns, click here and here and here and here. One of the key areas discussed in my testimony was the President’s abuse (in my opinion) of his recess appointments power. I have two law review articles out on the issue. 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). Now the issue is to be heard today by the Supreme Court in Noel Canning v. NLRB, No. 12-1115.


Roughly two years 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. The OLC paper, in my view, represented a low for the office which once prided itself on its independence from the White House and objective legal analysis.

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.”

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.

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.

In my view, this is not a close question and that the President has, again, disregarded the purpose and language of the Constitution to deal with a political impasse in Congress. Now that the Democrats have curtailed the use of the filibuster power, a negative ruling may trigger a new round of such changes. That is a political decision. However, this constitutional dispute raises an important question of the limits on executive power in a system increasingly dominated by the Chief Executive. I believe that the Democrats will soon loathe the day that they assisted Obama in this expansion of power when another person sits in the White House.

58 thoughts on “Supreme Court Takes Up Challenge To Obama’s Appointment Authority

  1. So Professor Turley, having such a political problem with President Obama trying to move the agenda forward by ‘accepted means following precedent’, does the message from the rethuglicon MINORITY in the Senate RETARDING ANY PROGRESS on restoration of un-employment benefits (which workers have ALREADY PAID FOR) because it was proposed by the
    black President ???

    http://talkingpointsmemo.com/livewire/john-hoeven-unemployment-benefits

    Of course you have no retort. This fits the mold of you recent dissent … Only issues that retard the Presidents ability, right? Well this retards the Presidents ability. Are you in favor of this obstruction ???

    You new right-wing smudges are showing….

  2. I don’t know how this thread morphed into a discussion of healthcare, but since it did, I believe it important to correct a misconception frequently repeated here and elsewhere. Republican opposition to the ACA was not based upon policy concerns but upon philosophical disagreements. More specifically, Republicans reject the notion that healthcare should be regarded as a fundamental human right. That is precisely why the dozens of House votes to repeal the ACA were not accompanied by the adoption of a Republican substitute.

    • Mike Appleton wrote: “Republicans reject the notion that healthcare should be regarded as a fundamental human right.”

      Excellent observation, but it requires a little bit of tweaking because we Republicans do believe that it is a fundamental human right for individuals to make their own healthcare decisions.

      It seems to me that Democrats are morphing the concept of “fundamental rights” to be something that is contrary to the way a Republican like myself thinks about fundamental rights. I see a fundamental right in the Lockean sense, as something that exists in man’s natural state without government. Therefore, I see government control of healthcare as an infringement upon man’s fundamental right to make his own healthcare choices. When government makes the decisions about what healthcare options are available or not available, it violates that basic fundamental right to make my own choices. A recent commentator gave an example recently how this has happened with her daughter. In my county here in Florida, going through the healthcare government website yields only one choice with one insurance provider for healthcare. This is why Republicans are against the ACA because it limits our fundamental right to make healthcare decisions for ourselves.

      Republicans tend to think of rights being established by our Creator, as mentioned in our Declaration of Independence. In contrast, many Democrats (not all) tend to think about rights as something conferred to man by government. They in one sense have hijacked the phrase “fundamental human rights” to refer to those “privileges” and “entitlements” given by government to man. They speak of the “right to vote” or “the right to food stamps” or “the right to unemployment benefits” or “the right to housing” or “the right to healthcare.” From my perspective, none of these are fundamental human rights. They are privileges granted by government, and in many cases, they destroy human rights and liberty. They destroy human dignity and self determination.

      In the area of liberty, everyone experiences that transition of moving from childhood through adolescence and into adulthood. For many, the freedom experienced by moving away from under the control and immediate authority of parents is very liberating. I suppose for some others it may be frightening. However, what is frightening to the former is the idea of coming back under the control of a surrogate parent like government. They see parents as necessary for a time, but once a person has matured, they should move out from underneath the controlling influence of their parents. This is one reason the word “nanny state” is used to talk about a government which provides all the essential needs of its citizens. Some people welcome that nanny state, but others see it as a return to being under the control of parents. They see it as a step backwards. Their desire is to live in the liberty and freedom of being an individual answerable first and foremost to their Creator and how their conscience dictates they should live. Secondarily they see their responsibility to their immediate family, and thirdly to their society. Fourth is their responsibility to civil government.

  3. “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.”

    Far better off, should not be the standard for constitutionality, Instead the proper method is for new legislation to achieve a desired outcome.

  4. It seems to me that the wrong argument was made in this case. The question as to whether the Senate was in recess at the time president obama made the appointments is not relavent.

    The real question should have been asked, answered and argued is, as is stated in the Constitution of the United States of America whether the vacancy happened when the senate was in recess.

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