DC Appeals Court Strikes Down Obama's Recess Appointments

Thankfully, a week that has gone awry for conservatives on the legislative front has ended with great news.  Aside for Saxby Chambliss announcing his retirement from the Senate, the DC Appellate Court has tossed out Obama’s recess appointments he made on January 4, 2012.


Last January, while Congress was in a district work period,  Obama made an end run around the Senate and appointed Richard Cordray as the first chief of the Consumer Financial Protection Bureau and named three new members to the National Labor Relations Board.  He did this as a “recess appointment.”  At the time, Obama employed absurd casuistry to suggest that the Senate has in fact been in recess for weeks:

Here are the facts:  The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised.  The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks.  In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds.  But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running.  Legal experts agree.  In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham “pro forma” sessions to prevent the President from exercising a constitutional power.


The problem is that Congress was not in recess.  They were indeed holding pro forma sessions.  In fact, a week earlier, while Congress was in the same pro forma session, the House and Senate passed a sweeping tax extenders bill, which granted tax cuts to almost every worker, unemployment benefits to millions of the jobless, and reimbursement payments to hundreds of thousands of healthcare providers.  If Congress can do all that during a “recess,” they certainly have the ability to advise and consent on a handful of executive branch nominations.

Furthermore, during that same period one week later, while Congress was still physically not present in the chamber, Obama notified them that he needed to raise the debt ceiling.  As such, any notion that the Senate was in recess was absurd.  Thankfully, the DC Appellate Court agrees.  In Noel Canning v National Labor Relations Board, the DC Court ruled that the appointments are null because Congress never adjourned and because the vacancies did not occur during a recess.  As such, the court ruled that all of the decision made by the NLRB this year must be vacated.


Although the decision only pertains to the NLRB appointees, it’s time for Obama to due the right thing and resubmit the nomination of Richard Cordray before the Senate.  Oh, and doesn’t this call into question all of the new sweeping mortgage regulations that were implemented by the  Consumer Financial Protection Bureau?

Cross-posted from The Madison Project


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