A federal appeals court ruled yesterday that President Obama unconstitutionally exceeded his executive authority when he made three recess appointments to the National Labor Relations Board last January. As Examiner reported at the time, the president made the recess appointments in spite of the fact that the senate, which confirms presidential appointments, was still conducting pro forma sessions and was not in recess.
According to Article II section 2 clause 3 of the Constitution, the president has the power to fill vacancies that occur while the Senate is in recess. These recess appointments escape the immediate need to be confirmed by the Senate, but expire at the end of the next session of Congress. However, Article I section 5 clause 4 states that neither house of Congress can adjourn for more than three days without the consent of the other. This is done by passing a resolution in both the House and the Senate. In the case of Obama’s appointments, there is no disagreement that Congress was not formally recessed since neither the House nor the Senate had passed a resolution to end the session.
The case was prompted by a lawsuit by Noel Canning, a Pepsi Cola bottling company, according to National Public Radio. The NLRB with its new Obama appointees ruled against the company in a union dispute. The company then sued on the grounds that the Obama appointees were illegal and that without them the NLRB lacked a quorum and could not legally decide the case.
The court ruled on two points. On the first, the Washington Post describes that the three judge panel unanimously decided that a recess under the Constitution means that the Senate must be between sessions and not simply on a break. The court noted that the senate, not the president, decides when it is in recess. The court also ruled on what type of vacancies could be filled by recess appointments. In a stunning limitation of presidential power, two judges held that recess appointments were limited to vacancies that arise during a recess. All three judges were appointed by Republican presidents.
For now, the ruling applies only to the Noel Canning case, but there were many other rulings issued by the NLRB that included Obama’s appointments. These cases could be opened to legal challenges as well under the new precedent. Currently the precedent applies only to the D.C. court of appeals.
The ruling was condemned by the White House and the NLRB. “The decision is novel and unprecedented, and it contradicts 150 years of practice by Democratic and Republican administrations,” White House press secretary Jay Carney said Friday in the Washington Post. “We respectfully but strongly disagree with the ruling.” Carney did not say whether the president would appeal the decision.
In a statement on the NLRB website, the board’s chairman, Mark Pearce, said, “The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.” The board apparently intends to continue business as usual even though any decisions made are likely to be challenged by the loser.
The decision also calls into question the appointment of Richard Cordray, the director of the Consumer Financial Protection Bureau. Cordray was installed via a recess appointment at the same time as the three members of the NLRB.
During his first term, President Obama lost a series of legal challenges to his unilateral executive actions. Although his administration triumphed when the Supreme Court upheld Obamacare’s individual mandate, Obama lost many other lower profile cases. The Supreme Court upheld most of Arizona’s immigration law in spite of a Justice Department lawsuit. The Obama Administration was held in contempt for its ban on deep water oil drilling and for failing to issue permits to oil companies according to Examiner. The Environmental Protection Agency also suffered a number of legal defeats under Obama for exceeding its authority to regulate carbon and cross-state air pollution under the Clean Air Act. As previously covered by Examiner, several courts have also ruled that Obamacare’s abortion and contraception mandates are unconstitutional burdens on religious freedom. Obama’s unilateral decision to halt deportation of illegal aliens who entered the U.S. as children may also have unconstitutionally bypassed Congress.
Nevertheless, it seems that Obama’s strategy of using executive action when he cannot get Congress to act will continue into his second term. Earlier this month he signed 23 Executive Orders dealing with gun control. According to the Wall St. Journal, the president may also be considering more executive action on environmental issues as well. Sen. Barbara Boxer (D-Ca.) recently told supporters, “There doesn't have to be a bill. I'm telling you right now, EPA has the authority in the transportation sector, the electricity sector, and the industrial sector under the Clean Air Act” to enact anti-carbon regulations without congressional approval.”
President Obama’s strategy represents a test for the American system of separation of powers. While executive action might move the president’s agenda forward in the short term, as this week’s ruling shows the courts might eventually dismantle much of his legacy because it was enacted via illegal shortcuts.