In response to a ruling today by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, White House spokesman Jay Carney called the decision “novel and unprecedented.” This could be one of many instances in which the co-equal branch of government, the judiciary, will attempt to check the powers that President Obama is attempting to exercise. And it could also be a test of how far Obama is prepared to go in terms of ignoring the courts and the Constitution to achieve his goals.
What the court said is that President Obama lacked the constitutional authority to make three recess appointments last January to the National Labor Relations Board. The issue was whether or not the Senate was in recess at the time. If it was in recess, then the President would have the authority to make the appointments. But instead, the Senate was in what is called pro forma session, meaning that someone would gavel the Senate in and out of session. It is largely a gimmick both parties have used over the years.
CNS News did a good job of explaining the issues involved:
Article 1, Section 5, Clause 4 of the Constitution says: “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.”
Because the Republican-controlled House did not allow the Senate to adjourn, neither House was in recess.
In the case of Noel Canning vs. NLRB, the court said, “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”
The decision continued, “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.”
If this ruling is upheld by the Supreme Court, it could result in hundreds of rulings by the NLRB being overturned. It also creates scenario in which other actions taken by the administration that conservatives have viewed as an overreach or trampling on the Constitution could now also be subject to the same sort of judicial review.
RedState’s Daniel Horowitz gave a clear explanation as to whether or not Congress was in recess:
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.
It will be very interesting to see the emboldened Obama administration react to what could be a major setback to its second term agenda.