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Obama Administration Thumbs Nose At Court Ruling On Separation Of Powers

Thumbing its nose at the federal courts, which ruled today President Obama's appointments to the National Labor Relations Board last year were not constitutionally valid "recess appointments," the Obama administration has indicated it will not remedy constitutional violations identified by the D.C. Circuit Court of Appeals in Noel Canning v. NLRB.

Instead, it apparently will continue to defend 200 other NLRB decisions issued by the invalidly appointed NLRB members as if those decisions were valid. It also will disregard the ruling's binding ramifications for another appointment President Obama made the same day he appointed the NLRB members, which is invalid for the same reason -- the "recess" appointment of Richard Cordray to be Director of the Consumer Financial Protection Bureau (CFPB). The D.C. Circuit declared there was no "recess" on that particular day for purposes of the Constitution's Recess Appointments Clause, so Cordray's appointment was constitutionally invalid, just as the NLRB appointments made on that same day were invalid. (Cordray's "recess" appointment during a non-existent recess is one of the constitutional violations cited in the pending court case of State National Bank of Big Spring v. Geithner, which also challenges provisions of the Dodd-Frank Act).

Since Cordray's appointment is invalid (he was not appointed during a recess, nor did the vacancy in his post "happen" during a recess, so it was not a valid "recess" appointment), his actions as CFPB director likewise are invalid, null and void. Just as the NLRB's order was vacated in the Noel Canning case, so, too, should the CFPB's actions (even assuming the agency itself were constitutional, which itself is questionable given its lack of accountability to the people's democratically elected representatives). Lawyers who advise clients on finance and banking cases have underscored that fact: “The CFPB world has been turned upside down,” Richard Gottlieb, who heads the financial industry group at Dykema Gossett Pllc in Chicago, said in an e-mailed statement. “If the Cordray appointment is void, then so too is every supervisory action and every new regulation promulgated by the CFPB arising out of newly created bureau powers.”

But White House spokesman Jay Carney claims the decision's implications for the CFPB (and for other decisions by the NLRB) can be simply ignored. "Carney said the ruling affects only one case and 'has no bearing on' Cordray’s appointment." It applies only to "one court, one case, one company,” he said. But in reality, as one news report noted, "The decision is binding law for any cases that come before the U.S. District Court in Washington as well as those that come before the D.C. Circuit." That didn't stop the CFPB itself from echoing Carney by claiming the ruling has “no direct effect” on it.

As the D.C. Circuit noted, the Obama administration's position would gut limits on executive power: "Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. The checks and balances that the Constitution places on each branch of government serve as 'self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.' [quoting the Supreme Court decision in Buckley v. Valeo (1976)]. An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law." The appeals court held President Obama can make recess appointments only between sessions of the Senate -- which everyone admits did not occur here. But even if the president could make intrasession recess appointments (as some other courts have held), he could not do so in this case, where no true recess, intrasession or intersession, was occurring at the time.

The Obama administration takes an incredibly expansive interpretation of the president's power under the Recess Appointments Clause, 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).

Based on this incredibly expansive interpretation of what a "recess" is, the Obama administration used "recess" appointments to appoint not only three NLRB members, but also the director of the CFPB.  The CFPB's 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 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 senators would not have to come back into town after recessing, to approve short-term appointments. President Obama's argument turns this purpose on its head, gutting the Senate’s ability to review presidential appointments, and effectively requires senators to remain in town, on duty, all the time if they wish to retain their power to review the qualifications of presidential appointees.

Under President 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 powerful posts such as the Supreme Court, preventing Congress from having any role in vetting such important officials. Taken to its logical conclusion, his argument would give him the power to 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, “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.” Even if this were not so, no president has appointed anyone based on a recess so short as the purported "recess" used to appoint Cordray and the NLRB members. In the Noel Canning case, the challengers argued that even if intrasession "recess" appointments could be made, such "recesses" had to be at least three days to allow a "recess" appointment, an argument that can be connected to the Constitution’s prohibition against the Senate “adjourning” for more than three days without House consent.

After President Obama recess-appointed Richard Cordray to be director of the CFPB, members of Congress expressed outrage 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 the recess appointment frustrated the Senate’s prerogative to confirm. House leaders emphasized the Senate was not in recess, and Senate Republicans said if there was a “recess,” 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 (in the past 30 years, no president has used a recess appointment during a recess of less than 10 days. By contrast, the pro forma sessions at issue here occurred every three days.

In addition to violating the Constitution through the Cordray appointment, the Obama administration has also violated the Constitution through provisions of the Dodd-Frank Act that President Obama signed into law in 2010 (not just through the CFPB, which Dodd-Frank created and structured in an unconstitutional manner, but also through other entities established by Dodd-Frank, such as the Financial Stability Oversight Council, whose constitutional violations I discussed earlier in The Washington Post). As I have previously explained, Dodd-Frank harms the economy and violates constitutional checks and balances:

Logically, the D.C. Circuit's decision calls into question not just Cordray's holding office, but also his actions while invalidly holding office, all of which are logically null and void. Many court decisions in addition to today's NLRB ruling make that clear, ruling that agency actions are invalid when they are taken, or influenced by, invalidly appointed government officials. See, e.g., FEC v. NRA Political Victory Fund, 6 F.3d 821, 824 (D.C. Cir. 1993) (NRA could challenge and overturn enforcement action against it based on invalid presence of non-voting Congressional officials on executive branch agency, even if they had no vote in its decision to prosecute the NRA and were silent; “A litigant ‘is not required to show that he has received less favorable treatment than he would have if the agency were lawfully constituted and otherwise authorized to discharge its functions’. . .Instead, litigants need only demonstrate they have been ‘directly subject to the authority of the agency”).