A federal appeals court ruled that United States President Barack Obama abused his power by usurping the Senate’s Advice and Consent power, thereby violating the Constitution. A three-judge panel of the Federal Appeals Court for the
District of Columbia
circuit ruled unanimously that Obama’s “recess” appointments to the National
Labor Relations Board (NLRB) were unconstitutional.
Obama had appointed two members of the NLRB during a time when the Senate was in session. Under the Constitution, appointments must be confirmed with the advice and consent of at least two thirds of the upper chamber of Congress (Article II, Section 2). Presidents have constitutional authority to make temporary appointments during “the Recess” of the Senate (Article II, Section 3). Presidents have made appointments between congressional sessions, but in recent decades they have increasingly made the appointments when Congress has recessed for summer or holiday breaks during sessions. The Senate had not objected to such appointments.
Obama took an even further step, however, by making the appointments when the Senate was in “pro forma” session, when it gavels to order every few days and conducts little or no business with only a few members present. The Senate took the step by unanimous consent of not recessing specifically in order to prevent Obama from making the appointments to the NLRB to which it objected. In addition to the NLRB members, the President also made a recess appointment to a newly-created consumer relations body to which the Senate objected, arguing that the Senate was essentially in recess.
The Federal Appeals Court panel examined the plain meaning of the phrase “the Recess,” noting the difference between inter-session breaks, as opposed to those between sessions, that is to say, between “recesses” and “the Recess.” In short, the case came down to the meaning of the article the, with the appellate court observing the specificity intended by the inclusion of the word. The Court made the point in its opinion that Obama’s wide interpretation of the recess appointment power would allow presidents to make appointments every time the Senate left for the weekend or even when it broke for lunch, which would render its Advice and Consent power meaningless. In its opinion, it cited the purpose of the recess appointment power as intended and expressed by the Framers and its interpretation in the early legislative history of the Republic in support of the Court’s interpretation of the plain meaning of the Constitution. Moreover, because Article I, Section 5 of the Constitution gives each house of Congress the prerogative to determine its own rules, the Court found the President lacks the authority to determine whether or not the Senate was in recess under its rules. The Senate had made it clear by its pro-forma sessions that it was not in recess, regardless of the interpretation of the Chief Executive.
The ruling means that the NLRB lacked a quorum of valid members, thereby invalidating its rulings since Obama made the unconstitutional appointments a year ago. The members were notoriously anti-business. The legitimacy of the actions of the consumer relations board have also been called into question.
The Obama Administration intends to appeal the case to the Supreme Court. If the appellate court ruling stands, it would be the second time so far that the President, a former constitutional law professor, has been ruled to have acted unconstitutionally in his first term. The first was in Obama’s signing of the act to federalize of health insurance, which violated the Constitution by attempting to coerce the States to expand the federal welfare entitlement program, Medicaid.