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. randyjet. “Those are pretty significant differences which I know is hard for you to understand.”
    Why do you attack him personally, do you know him? He has a different opinion and probably values different aspects of fairness than you do. Some people think fair is we all have the same amount of goods. Some people think fair is if we have the same opportunity to acquire goods as we see fit. Which is right? Is he right? Wrong? it’s his views, why do you think it is had for him to understand?

  2. Given the damage done by John Yoo and David Addington, it will be years before the Office of Legal Counsel regains any credibility in my eyes, but that is an aside. On the substantive issue, Prof. Turley is absolutely correct. The President’s “recess” appointments, although motivated by completely understandable frustration, were unconstitutional.

    The problem is that the Senate has the constitutional authority to make its own rules. Pro forma sessions are a mockery of those rules, of course, but cannot be challenged. The only solution is to further amend the filibuster rules, or eliminate them entirely.

    Having said that, I believe that Sen. McConnell has repeatedly failed to fulfill his obligations under the Advice and Consent Clause. I have previously argued that the Senate is bound by an implied duty of good faith in the consideration of presidential appointments. That duty has been breached throughout President Obama’s term of office. Unfortunately, it is a breach for which there is no remedy other than the ballot box.

  3. davidm Once again, you leave out simple facts to try and defend the stupid. First off the filibuster in the UK is not even close to what existed in the Senate. For example Cruz could not have done his speech in the UK since the speaker of the House would have cut him off since the member MUST stick to the topic at hand. You cannot read the phone book or Dr. Suess in the Commons. Then in all of the parliaments it does NOT take a super majority to move to a vote. In those systems the filibuster cannot as in the Senate be used to KILL a bill either. Those are pretty significant differences which I know is hard for you to understand.

    1. randyjet wrote: “…you leave out simple facts to try and defend the stupid. First off the filibuster in the UK is not even close to what existed in the Senate. For example Cruz could not have done his speech in the UK since the speaker of the House would have cut him off since the member MUST stick to the topic at hand. You cannot read the phone book or Dr. Suess in the Commons. Then in all of the parliaments it does NOT take a super majority to move to a vote. In those systems the filibuster cannot as in the Senate be used to KILL a bill either. Those are pretty significant differences.”

      Of course there are different rules, but I did not omit rules in order to defend anything. I was just correcting the factually incorrect statements that you were making. I’m glad that you now acknowledge they do have the filibuster over there, even if you were not very gentlemanly in how you admitted your mistake.

      Keep in mind that in the House of Commons where they have a filibuster procedure, they have over 600 members. In our House of 435 voting members, we eliminated the filibuster. And while they have a rule to stay on topic, they also have a rule that the Speaker of the House of Commons can override a vote for cloture if he does not think the minority has been heard. So from my perspective, their rules better favor a filibuster than ours does. They are better able to hear the voice of the minority. The only disadvantage of their filibuster is that the Speaker can rule a speaker out of order if he gets off topic. That power could be abused, but if not abused, that is a great system of filibustering.

      You also incorrectly claim that the filibuster in the U.K. cannot be used to kill a bill. A few years ago the filibuster was being used in the UK to kill a bill because the bill had a deadline when it had to pass. They had makeshift beds and all night refreshments brought in. Here is a link to an article describing how that filibuster worked over there.
      http://archive.is/UFwj

      In regards to Ted Cruz, I hope you understand that this speech to which you refer was not a filibuster at the time he read Dr. Seuss. I know it is hard to keep the facts straight with the poor news media outlets that sensationalize everything to rile up rabid Democrats. Also, I should point out to those who might have been misled by your post, Ted Cruz never read the phone book. He did read Green Eggs and Ham. The Senate floor was nearly empty when he read it because it had adjourned already, having scheduled the vote for the following day. So Ted Cruz took the opportunity to read a bed time story to his children who were preparing for bed. It took like 5 minutes. Big deal. I thought it was nice for him to think of his family and children while out of town on business. What family man would not have loved to be able to do that? I also loved the picture of his excited kids at home watching him read it. Great job Ted Cruz! Senator AND family man! What a great example. That’s how I think about it.

  4. JEC, the fact that now you bring into the discussion “flavor or race”, when no one accused you of any such thing makes me even more suspicious of your claims.

  5. If it was your daughter..I am not involved in politics nor am i partisan as to party or flavor or race. Sorry to disagree. I shared a personal story of concern with the problems with authority and appointments. I did not offer you a forum to tout your partisan beliefs. I am also not working for any special interest groups or being paid to blog/discuss protect the adminstration. Have a good day.

    1. JEC wrote: “If it was your daughter..”

      JEC, I am really sorry to hear about your daughter. All government regulations create situations where some people fall between the cracks. This is a major reason why the Republicans did not want the Healthcare reform. There are many who do not see these problems, and unfortunately, they are not too sympathetic toward those who do. I hope that you are able to make the health care choices necessary that will best benefit your daughter despite government regulations.

  6. JEC,
    Sorry but I think your claim that it is “Obamacare” that is hampering the care your daughter receives, bogus. Your comments sound way too partisan to my ear. Perhaps her doctors don’t think the treatment is warrented for other reasons than Obamcare guidelines.

  7. Sorry, I am a female, and its my daughter who is impacted. And it’s the DOCTOR being bound by the OBAMACARE rules. So nice you got care-really is nice to know, and glad for you. BUT where does a CURRENT CANCER PATIENT go? The cancer is there..its not in REMISSION..and its in her lungs. So if it gets going again..there is NOT A FIX, NO CURE, NO REMISSION. We don’t want it to get to that point. She is alive, now able to speak, living without too much pain right now and with young children to raise. AMA guidelines SAY she needs the treatment..but the laws from OBAMACARE say its not necessary. Which would you rather try if this was YOUR wife?Wait and see until the cancer gets a strong foothold again or keep it under control?? Millions of people..sounds like you are a bean counter. As far as I know, we are all individuals. And my daughter has cancer..she has 100% cancer. No one is a number.

    Glad your significant got treatment, now tell me how my daughter gets treatment. Otherwise, don’t comment on ‘daisies in the meadow’ and spout non-helpful suggestions ! Guess we are at the same stage your wife was BEFORE OBAMACARE:”Then when she needed chemo(RADIATION), she was told again, to come back next year(WHEN TUMOR IS GROWING), and they would see if the county(COUNTRY) could pay for it.”
    Of course, then the rules might be she is too terminally ill to fund treatment….
    And this is progress? Removing treatment from cancer patients who had it before just to make things ‘even?’ Sad commentary for our system!

    1. jec I am sorry to hear about your daughters cancer. It is NOT Obamacare that prohibits ANY treatment. The doctor is perfectly free to give her whatever treatment he wishes to give within AMA, FDA, and medical practices. He can give it for free, you can pay for whatever treatment you wish, etc.. The problem is that the INSURANCE company may not CHOOSE or WANT to pay the doctor for treatment. The law does NOT prohibit any doctor from giving free medical care. If you think that is so, please cite the law which DOES prohibit it.

      This reminds me of the story of the wealthy Canadian woman who thought that her Canadian health care system did not give her the treatment as fast as SHE thought was medically necessary, so she went to the Mayo Clinic in AZ to get treatment. Then sued the Canadian health system for disregarding HER own medical diagnosis instead of the medical professionals. The law did not prohibit her from going to AZ or paying for it herself.

  8. JEC My wife had cancer before we met. She and her ex had a store that went bust, but they had been in business for nearly 20yrs. Of course, she had no health insurance and no money. When she discovered the cancer, she was basically told that since she had no insurance she would just have to die. She finally got the operation that saved her life because the other doctor was willing to file false reports that enabled her to get it. Then when she needed chemo, she was told again, to come back next year, and they would see if the county could pay for it.

    It is incredible that your wife is in the private sector health care system, under a private insurance plan, and it is Obama’s fault! I guess it is Obama’s fault too that her records were screwed up too. In fact, it used to be before Obama care that the insurance company had the right to terminate her health insurance at any time. You are fortunate that they chose not to do so. Millions of people have not been so lucky. There is no longer a lifetime cap, so if she does have the cancer return, she cannot be denied treatment once she hits the cap.

    It is the INSURANCE COMPANY which has decided it will not pay any more for treatments that fall outside the best practices guidelines that Obamacare has published. As for being outside AMA guidelines, this is a thing that can be fixed and should be. Nobody thinks a new program is perfect from the beginning. That is the whole point of having a panel to find the best practices to get and pay for the best treatments, AND to stop the SCAMS many doctors were using to milk insurance companies and Medicare. I guess you forget the billions of dollars which have been stolen by illegitimate practices. I love the fact that conservatives hate government waste, but think it is just fine as long as that waste finds its way into their pockets.

  9. Where in the abuse of power is OBAMACARE? As of Jan. 1, 2014, OBAMACARE appointed government employees now act as rationing board. From personal experience, a ill family member with cancer being controlled with radiation treatments (outside the thyroid, and initially showing in the lungs, papillary radiation caused cancer) was denied life saving radiation treatment because the treatment was keeping her in remission. Therefore, against AMA guildelines, she is denied treatment until she develops tumors. May I mention she is a mother of young children, working full time, and very productive in society. However, without radiation every three years to control this monster, she is at high risk of further spread. Oh,and the new electronic records, do not have any of her history, all has been archived or lost in the shuffle and rush by the large cancer center she was treated at previously. She does not Have Obamacare insurance has a grandfathered policy but doctors (cancer doctors) have been told they have to ‘follow’ the rationing rules created by the panels. Call it rationing..but in our case it could be a death panel! And the expensive tests to prove she is not in remission..NOT COVERED! So until she develops more tumors in her neck and lungs – she gets no preventative care. What has Obama done with his powers?

  10. While the appointments may be suspect, the reasons for the appointments were not. These kind of borderline appointments weren’t needed during the Bush administration because the filibuster was not abused like it has been ever since Obama took office. The appointments were blocked so that this administration could not undue some of the nonsense initiated by the prior administration in the NLRB. These appointments would not have been necessary if Harry Reid had done what he did recently earlier. If the Office of Legal Counsel was an independent office prior to the Obama Administration, then I guess I must have been sleeping during the Bush administration. I also must have just dreamed about a certain OLC attorney who approved of torture when the Bush administration needed cover.

    1. rafflaw wrote: “These kind of borderline appointments weren’t needed during the Bush administration because the filibuster was not abused like it has been ever since Obama took office.”

      Actually, President George W. Bush made 171 recess appointments, far more than President Obama has made. During the last two years of Bush’s term, Senator Harry Reid prevented further recess appointments by not allowing the Senate to adjourn for more than 3 days.

      The filibuster rule is meant to provide a voice to the minority. Is it really abuse to require 60 votes instead of 51 votes to end a speech in the Senate? At one time it was 67 votes. The real reason it has become a problem is partly because of the excessive partisanship by this President. He expects all the Democrats in the Senate to go his way, and they know it. As a result, the minority in the Senate suffers. The real abuse to democracy is changing the Senate rules to eliminate the need for those extra 9 votes. In my opinion, if you can’t persuade 9 additional Senators out of 100 using reason and logic, you probably favor rule by tyranny and dictatorship along party lines. You hear the minority as whiners who have no real point to make. They are prejudged to be feisty mosquitoes who deserve to be slapped down.

      The new cloture rule favors whatever party is the majority. It encourages more partisanship. It discourages listening to minority viewpoints. It might be advantageous to Democrats now because they are the majority in the Senate. It makes it easier for them not to hear others and to force through their own agendas. But if the Republicans become the majority, especially if the new President is a Republican, I think Democrats will be singing another tune about the filibuster and cloture rules. They will rue the day they did this change.

      1. davidm You are using the wrong metric to judge the use of recess appointments, since there are other reasons for them besides the filibuster. The real metric to use if the filibuster and how often it is used. The filibuster rule was NOT established to be so kind as to allow a minority to have its say. It was designed to prevent such terrible laws from passing the Senate that prohibited lynching blacks in the South and denying the ability for the Federal government to enforce civil rights. Give me a break.

        It is actually funny that you blame Democrats for people such as Gingrich, DeLay, and now Cruz who will simply destroy the government if THEY do not get their way. THAT is what terrorists do, only the GOP does it on a less dramatic scale and means. I also guess you forget W Bush, if you are not completely for us, you are against us. Then you forget Nixon, etc.. Then since the GOP cannot get rid of the NLRB, they simply refused to allow it to function by not allowing any new members to be appointed. For this to be an equal opportunity partisan offender, YOU will have to show a similar thing the Democrats did to an agency they did not like.

        In my area of aviation, the worst thing about Reagan, and Bush was that for the first time they politicized the NTSB. It used to be that it was regarded as a pretty non-partisan board, but after them, that came to an end and political consideration came first on the board. When Nixon was President, he interfered with it in the case of the DC-10 crashes, but at least that came from outside the agency and was forced on the FAA., not the NTSB.

        1. randyjet wrote: “You are using the wrong metric to judge the use of recess appointments, since there are other reasons for them besides the filibuster. ”

          I did not raise the filibuster question. I was responding to rafflaw’s use of the term filibuster in relation to his theory about why recess appointments are needed.

          randyjet wrote: “The filibuster rule was NOT established to be so kind as to allow a minority to have its say. It was designed to prevent such terrible laws from passing the Senate that prohibited lynching blacks in the South and denying the ability for the Federal government to enforce civil rights.”

          Although the Democrats certainly used the filibuster against civil rights legislation, the history of the filibuster goes back much further than the civil rights era. There was a time when unlimited debate was allowed without any vote at all that could bring cloture. Steadily we have dismantled unlimited debate so that now only one more than half of the Senators can end discussion. Such is contrary to democratic principles and is a recipe for tyranny.

          I recommend to you a book: “Defending the Filibuster: The Soul of the Senate.” It goes through a thorough history of the filibuster and defines its purpose as an important constitutional system of checks and balances.

          randyjet wrote: “It is actually funny that you blame Democrats for people such as Gingrich, DeLay, and now Cruz who will simply destroy the government if THEY do not get their way.”

          I have not seen any intention from either Newt Gingrich or Ted Cruz to destroy government. Senator Cruz is an outstanding constitutionalist who is working hard to protect our government from tyranny and bringing it back toward its constitutional roots.

          1. Such is contrary to democratic principles and is a recipe for tyranny.

            davidm You are truly funny since you don’t think about the ramifications of what you write. I guess then the House is a tyranny since they do not have the filibuster. I guess that Canada, the UK and all parliamentary governments are tyrannies too. Incredible. It is time to use your head and think instead of being a partisan hack.

            1. randyjet wrote: “You are truly funny since you don’t think about the ramifications of what you write. I guess then the House is a tyranny since they do not have the filibuster. I guess that Canada, the UK and all parliamentary governments are tyrannies too.”

              The House use to have the right to unlimited debate (filibuster) until 1842 when they passed a rule to limit the duration of debate. As far as I know, Canada and the UK both still have filibusters, so I don’t understand your comment here at all.

              Look, it is common sense that if you are a minority and want to get your point across, it is useful to be able to have as much time as you need to convince the others of your concern. It is a device primarily used by minorities, which helps curb the tendency for democracy to fall into mob rule and tyranny. Why would you be against unlimited debate? You seem to enjoy it pretty well here. 🙂

  11. Professor Turley, you are right on. And I don’t detect a hint of one sidedness.

    Both the Rs and Ds are despicable (with very few exemptions on both sides). The answer to the Senate not doing their business is to vote the bums out of office. Something most Americans are loathe to do. While Congress has something like a 10 or 15% approval rating, Each Senator or Congressman has at least a 50.1% approval rating in their district because we keep sending 95+% of them back to do the same crappy job.

    The answer to Congress not doing their job is not to give that job to the President. If they don’t do their job, the constitution has only one solution, the job does not get done. Now we as voting citizens can then approve of the job not done (vote them back in office) or tell them to bug off and go home and put someone new in office.

  12. One last thought for this evening.

    I hope everyone including Professor Turley, the authors at GeneH’s new blog & the posters will fully support both of these blogs.

    There remains plenty of political parasites that would love nothing better then to destroy both of these blogs.

    I feel that this split can be a good thing if both can grow & yet stand to together against the tyranny & of the many important issues that confront us all.

    Gnite.

    http://genehowington.wordpress.com/

  13. Oky1 says:
    January 9, 2014 at 11:41 pm

    (Edit)

    At the same time I’ve known Professor Turley’s work from years back.

    On Law & Constitutional matters he’s be the public voice that allows the words I can not put together to be heard.

    I’m not sure everyone realizes just how important & at the same time risky Professor Turley’s comments were last month in front of the Congressional House Judiciary Committee.

    He was asked by some (of us) to show those ahole polecats the road out of this mess & I’m satisfied he & the others there did all that could be expected.

    I’m a funny loyal kinda a guy so I’m winging this thing right now.

    (Edit)
    **

    The point, regardless if it’s Professor Turley or whomever, we must find the road out of this Hell or there is no future for anyone or their grandkids!

    http://jonathanturley.org/2013/12/03/house-judiciary-committee-to-hear-testimony-on-president-obamas-authority-to-suspend-or-change-federal-laws/

  14. I disagree with itchinBayDog. We already got a lap dog on the Supreme Court and You all know which one I am talking about. Lap dog for the Koch Brothers. Smiling Jack Russell. Citizens United. If I was a dog I would not be proud of him. Whoops I just gave up one clue. I am going to catch holy hell from the dogpac for calling a human a lap dog. Ok, not that. He is a Koch Brother fed swinehund.

  15. Chicago politics has obviously changed the formerly independent OLC into a puppet office. I’m no fan of McCain. But he was spot on when he said an Obama administration would bring Chicago politics to DC. This is just one of many examples. Mr. Turley is spot on w/ his legal assessment IMHO.

  16. I am just astounded… ‘..Loathe the day that they assisted Obama in expanding this power…’ when their was NO comparable analysis done here, that I can find, of the time when Bush/Dick ruled over DC and tried their hardest to create the ‘Unitary Executive’ – translated ‘DICTATOR’ under the guidance of Karl Rove and others while we, the people, had NOTHING to say because we were rendered moot by the ‘oh, you not a patriot’ war cry, and YOU the legal community DID NOTHING!

    And NOW, with the rethuglicon hate machine doing EVERYTHING in their power to obstruct, de-rail and eliminate ANY opportunity for this President to be able to govern the nation in a way that MAY pull it from the brink of absolute destruction at the hands of rethuglicon Klowns. AND YOU, a well established part of the legal community trying your hardest to BLOCK initiatives to help this governing initiative along..

    We’ll loathe the day that the Dems DID NOT wipe the filibuster away for Mitch McConnell and his band of obstructionists from day 1 of this congressional dilemma (the first day of Obama’s first term) and render this issue moot.

    BUSH/DICk can do it but Dems can’t?? BS, watch.

  17. traveling limey

    I despise both these two parties but do not advocate the president bypassing Congress & the Constitution as that is worse, as shown by several incredible edicts by this president worse than even the Patriot Act that this president now ratifies.
    ===============
    American English makes it difficult to say what we want to, but “I despise both these two parties” is a good start.

    I would add that “these two parties” are not all that two (The Government of the Government – 4).

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