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Federal appeals court rules Obama's Labor Relations Board non-recess recess appointments were illegal

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By Doug Powers  •  January 25, 2013 07:42 PM

**Written by Doug Powers

We’re used to Friday afternoon document drops, but here’s a Friday afternoon recess appointment dump, courtesy of the U.S. Court of Appeals for the District of Columbia Circuit:

In a case freighted with major constitutional implications, a federal appeals court on Friday overturned President Obama’s controversial recess appointments from last year, ruling he abused his powers and acted when the Senate was not actually in a recess.

The three-judge panel’s ruling is a major blow to Mr. Obama. The judges ruled that the appointments he made to the National Labor Relations Board are illegal, and hence the five-person board did not have a quorum to operate.

But the ruling has even broader constitutional significance, with the judges arguing that the president’s recess appointment powers don’t apply to “intra-session” appointments — those made when Congress has left town for a few days or weeks. They said Mr. Obama erred when he said he could claim the power to determine when he could make appointments.

“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” the judges said in their opinion.
[...]
In the short term, the ruling invalidates one NLRB decision. But over the longer term it could invalidate a year’s worth of decisions by the independent agency, could undercut Mr. Obama’s new consumer watchdog agency set up in the 2010 Wall Street reform law, and could even call into question decisions made by some judges who were given recess appointments.

If this stands it would mean that hundreds of National Labor Relations Board decisions since the recess appointments were made will be invalid.

Big Labor = Unhappy campers.

The Department of Justice disagrees, of course. Jay Carney’s blasting the ruling as well, citing other “recess” appointments in presidential history for comparison while hoping nobody cares about the difference between a Senate-declared recess and an unofficial bathroom break (Carney cited other presidents who made intrasession recess appointments, but the Senate was not in declared recess — intrasession or otherwise — when Obama made these particular “recess” appointments). The ruling addressed that point:

The court rejected the position not only of the Obama administration but that of administrations of both parties since 1921 that the president can make a recess appointment during any substantial break in the Senate’s activity.

What happens now? John Steele Gordon at Commentary:

The administration will most likely appeal to the Supreme Court. But that Court could let the lower court’s decision stand simply by refusing to grant a writ of certiorari, which is necessary to appeal most cases to the high court. The fact that the ruling from a three-judge panel was unanimous greatly increases the chances that the court will not “grant cert,” to use the jargon of the court.

Assuming this decision stands, all the decisions of the NLRB since January 4th, 2012, will be void. His appointment of Richard Cordray head to the new, and very powerful Consumer Financial Protection Bureau, made at the same time, and being challenged in a separate case, would also fall.

Early last year Michelle wrote about the regulatory powers Richard Cordray was handed with one wave of the recess appointment wand. We’ll wait and see what happens with Cordray’s appointment.

Let’s close with the inevitable “evolving position” on this subject: Obama 2005: Recess appointees are “damaged goods;” Obama 2010: Recess appointments are “critical” need.

**Written by Doug Powers

Twitter @ThePowersThatBe

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