A federal appeals court in Washington, D.C., has ruled that recess appointments made last year by President Obama were a violation of the Constitution, upending nearly 200 years of American political tradition and possibly invalidating hundreds of decisions made by the National Labor Relations Board.
The White House and legal experts were shocked by the breadth of the decision by a three-judge panel that Obama exceeded his presidential authority when he appointed three nominees to the National Labor Relations Board and Richard Cordray to lead the Consumer Financial Protection Bureau, during a three-day recess of the Senate last January.
The court effectively ruled that a practice presidents have been using since 1823 was a violation of the Constitution.
The Obama administration was taking a calculated gamble when they made the appointments, deemed necessary because congressional Republicans have blocked the president from making hundreds of appointments during his tenure. In this case, Obama decided to follow a practice used 243 times by former President Ronald Reagan, and 105 times by former President George W. Bush — wait until the Senate goes on a break and make the appointments while they’re gone.
That decision was challenged by a Washington state company that didn’t like a ruling made by the new members of the National Labor Relations Board.
In his decision, Chief Judge David B. Sentelle had sharp words for the administration’s actions, saying it would give 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,” Sentelle wrote.
Other federal courts have upheld the right of presidents to make recess appointments, which means yesterday’s decision is sure to be brought before the Supreme Court for final clarity on the matter.
Republicans and business groups didn’t like Obama’s NLRB appointments because they felt the new members made the board too pro-union. But Democrats countered that the board had become too pro-business during the George W. Bush administration and Obama was restoring balance.
But the court ruling puts hundreds of decisions that the five-member board has made in the past year in jeopardy, ranging from enforcement of collective-bargaining agreements to the rights of workers to use social media.
Mark G. Pearce, NLRB chairman, issued a statement saying the board disagreed with the ruling. He said other appeals courts might reach a different conclusion on the appointments.
“In the meantime, the board has important work to do,” said Pearce, whose agency oversees enforcement of the laws governing strikes and unionization drives. “We will continue to perform our statutory duties and issue decisions.”
The ruling also raises doubts about the recess appointment of former Ohio Attorney General Richard Cordray to head the new Consumer Financial Protection Bureau, and decisions made during his tenure, such as the far-reaching new rules governing the mortgage industry.
“The decision is novel and unprecedented, and it contradicts 150 years of practice by Democratic and Republican administrations,” White House Press Secretary Jay Carney told reporters Friday. “We respectfully but strongly disagree with the ruling.”
Legal experts said the Obama administration probably didn’t think the court would ever reach so far in a decision on recess appointments.
“In the past, executive authority has expanded and expanded and expanded, so they thought: let’s go for it,” Bruce Fein, a Justice Department lawyer in the Reagan administration told Politico.
Fein, who publicly disputed Obama’s power to make the appointments, added, “Now, they’re far worse off than before because the lines are drawn much more narrowly in terms of what anyone thought were [the president’s] abilities previous to this ruling … It’s an over-reach, and he ends up now worse off than where he began.”
“The loss is way bigger than the battle he thought he was fighting,” said Denise Keyser, a labor lawyer with Ballard Spahr law firm in New Jersey. “If this is upheld, this is such a huge loss for the president and for the way the country has functioned for so many years … I don’t think anybody, when he made the appointments, foresaw that the court would do this.”
Democrats in Congress say Republicans now will be even further emboldened to block all of Obama’s appointments, thus making Washington even more dysfunctional.
“Today’s circuit court decision is not only a radical departure from precedent, it ignores the fact that President Obama had no choice but to act,” said Sen. Tom Harkin (D-Iowa). Harkin said that “throughout his presidency, Republicans have employed unprecedented partisan delay tactics and filibusters” to block Obama’s nominees.
Pamela Allen, legal director of National Nurses United, told The Washington Post that the court decision would lead to “chaos.”
“It’s a field day for the employers,” she said. “This decision will be appealed, but to a [Supreme] Court that hasn’t always been friendly to labor over the years.”
She added that hundreds of NLRB rulings might now be contested by employers. In the case of her union, she gave the example of a recent ruling to force a rural California hospital to award back pay to union activists, and to accept a vote by its nurses to allow the union to bargain on their behalf.
