You are here

Appeals Court Hears Challenge To Obama Administration Power Grab Over NLRB

This morning, the D.C. Circuit heard oral arguments in Noel Canning v. NLRB, which includes a challenge to President Obama's "recess" appointment of two National Labor Relations Board members last January, when the Senate was technically in session, not in recess, and the purported "recess" was very brief, even in the eyes of those who claim there was a "recess." (Obama also used a "recess" appointment to install the Director of the Consumer Financial Protection Bureau, an agency  that CEI is suing in its challenge to the Dodd-Frank Act). Under the Constitution's Appointments Clause, the president can only appoint high-ranking officials after the Senate confirms them by majority vote. The following clause of the Constitution, however, contains an exception to this rule. This next clause, known as the Recess Appointments Clause, allows the president to make temporary appointments to fill vacancies that "happen" during "the" recess of the Senate, presumably meaning the recess that occurs after the Senate has finished for the year and left Washington, D.C.  Such appointments last until the end of the next session of the Senate.

The Obama administration takes an incredibly expansive interpretation of this provision, arguing that he can appoint officials without the Senate's consent, not only during any recess, no matter how brief (not just "the" recess between sessions), but also to fill any appointment, regardless of whether the vacancy arose during a recess. Past court rulings have stretched the reach of the Recess Appointments Clause, but never this far. The Recess Appointments Clause provides that "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session" (emphasis added) (Article II, Section 2, Clause 3 of the Constitution).

The issue matters to CEI because President Obama asserted the same incredibly broad authority to make recess appointments during nonexistent recesses when he appointed the director of the newly created Consumer Financial Protection Bureau, whose vast, uncabined authority (Congress has no control over its budget, it has a sweeping grant of authority over the financial sector, and its director, once appointed, can't be replaced by a succeeding president who disagrees with his policies) is the subject of a pending constitutional challenge that CEI joined in State National Bank of Big Spring v. Geithner. As the Federalist Papers make clear, recess appointments were designed for the convenience of the Senate -- so that they would not have to come back into town after recessing, to approve short-term appointments. President Obama has turned this purpose upside down, eviscerating the Senate's role of reviewing presidential appointments, and effectively requiring senators to remain in town, on duty, all the time (at considerable inconvenience) if they wish to retain their power to veto presidential appointments.

Under Obama's interpretation of the Constitution, he can make a recess appointment every time the Senate is momentarily not there to approve a nomination. His interpretation would allow the president to appoint an endless succession of temporary appointees to key positions like the Supreme Court, preventing Congress from having any role in the approval of such important officials. And taken to its logical conclusion, he could make such appointments every time the Senate takes a lunch break, goes home for the night, or adjourns for the weekend, judging by the arguments administration lawyers have made in court, in which they argue that sessions don't count as sessions if (like a pro forma session with only a few Senators present) they leave the Senate momentarily unable to immediately act on a presidential nomination.

As the Heritage Foundation notes, "Presidents have used the [Recess Appointments] clause during both intersession recesses, which occur between two sessions of a Senate, and intrasession recesses, which occur within a Senate session. For the first 150 years of the nation's history, Presidents made recess appointments almost exclusively during intersession recesses. In the post-World War II era, however, and especially since the mid-1980s, Presidents have made recess appointments during intrasession recesses, including recesses of less than two weeks. Some commentators have concluded that the text and intent of the Framers suggest that Presidents can make recess appointments only during intersession recesses of the Senate."

Past practice, however, does not involve the radical thing that President Obama has done here, even assuming the Senate was actually in a brief recess at the time, since no president has appointed anyone based on a recess so short as even the Obama administration recognizes the purported recess was. The challengers have focused on the three-day rule, which presidents and Senates previously honored and which can be connected to the Constitution's prohibition against the Senate "adjourning" for more than three days without House consent.

At oral argument, Judges Sentelle and Griffith seem to think that the best reading of the Recess Appointments Clause, based on the framers' intent, is a complete prohibition against "intra-session" recess appointments -- i.e., recess appointments occurring during, not between, the yearlong "sessions" of Congress. (That would obviously doom Obama's recess appointments.) Thus, they repeatedly chastised the government for referring to "recesses," rather than "the Recess," and they indicated strongly that they see "the Recess" as referring strictly to the single recess between each session. (Judge Griffith actually gave the government the opportunity to argue that these appointments actually occurred "between" sessions, but Justice Department lawyer Beth Brinkmann demurred, admitting that that they were not between sessions. I wonder whether she will try to take back that concession.)

After President Obama recess-appointed Richard Cordray to be director of the CFPB, members of Congress expressed outrage that the president did an end-run around confirmation by making an appointment during a period when the Senate was conducting pro forma sessions. They argued that the recess appointment frustrated the Senate’s prerogative to confirm. House leaders emphasized that the Senate was not in recess, while Senate Republicans said if there was a "recess," that it was too short to permit a recess appointment. House leaders said there was no recess to begin with, since the House did not consent to the Senate “recess.” Republican senators focused their objections on a separate legal issue: whether the pro forma sessions conducted by senators were sufficient to interrupt any "recess" and break it down into mini-recesses too short to permit a recess appointment predicated on the existence of something of greater magnitude and length than senators going home for the weekend. Senate Republicans and others opposing the president’s recess appointment argued that pro forma sessions are sufficient to interrupt the Senate recess. Their argument turned on the timing of the appointment: in the past thirty years, no President has used a recess appointment during a recess of less than 10 days. See Recess Appointments, Technically Without the Recess, Law Blog, The Wall Street Journal (January 4, 2012).

Presidents generally do not exercise recess appointment power where Congress is at recess for less than 10 days; however, a Department of Justice brief from 1993 implied that the president may make a recess appointment during a recess of longer than three days. Yet, the pro forma sessions at issue here occurred every three days. The Senate Republicans argue, therefore, that President Obama acted outside his constitutional authority in appointing Cordray during that period of three days or less (during which the House would say there was no recess at all).

In addition to violating the Constitution in various ways (which I have also discussed here, with regard to another agency created by Dodd-Frank, the Financial Stability Oversight Council), Dodd-Frank is also economically harmful and bad policy, as I have previously explained: