A federal appeals court ruled on Friday in favor of a well-known plaintiff's argument that President Barack Obama violated the Constitution by making recess appointments in 2012, a decision that many hope will prevent the president from bypassing the Senate confirmation process to fill cabinet and other administration positions.
Talk radio icon Mark Levin's Landmark Legal Foundation argued in its amicus curiae (friend of the court) brief that the President's use of the Constitution's "recess appointments" clause violated the restrictions placed by the Constitution on that power. Levin is a former chief of staff for the U.S. Department of Justice during the Reagan Administration.
As a result of a lawsuit filed against Obama, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia reprimanded Obama by saying he did not have the power to make the three recess appointments to the National Labor Relations Board because the Senate was indeed technically in session and not in recess, which is a prerequisite for legitimate recess appointments.
If the decision that's favorable to Levin and his legal team stands, it will nullify hundreds of board decisions made over the past year by officials whom Levin termed "unconstitutional appointments."
The federal court ruled that President Obama -- or any other president -- is allowed to follow recess appointment procedures is the U.S. Senate is in "official recess" which is actually a once-a-year event between Senate sessions.
The ruling will most likely effect the appointment of Richard Cordray to head the Obama-created Consumer Financial Protection Bureau. Cordray's appointment, also made on Jan. 4, 2012, is being addressed in a separate lawsuit and court case.
The court's decision is a victory not only for the Landmark Legal Foundation, but also for Republicans and business groups that have been allegedly victimized by an overbearing labor board that favors labor unions that fork over millions of dollars in member-dues to Obama and Democrat candidates.
According to the Landmark Legal Foundation: Obama made the recess appointments after Senate Republicans blocked his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.
"Either the Senate is in session or it is in recess," Chief Judge David Sentelle wrote in the ruling. "If it has broken for three days within an ongoing session, it is not in `the Recess' described in the Constitution."
Judge Sentelle quipped that "the president could make appointments any time the Senate so much as broke for lunch."
"Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers," Sentelle wrote.
Obama used recess appointments to appoint Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board.
If Obama's appointment of Cordray to the consumer board is ruled invalid, all the regulations the consumer board has issued, many of which remake the mortgage business, could become null and void.