An appeals court says his recess appointments are unconstitutional.
President Obama has shown increasing contempt for the constitutional limits on his power, and the courts are finally awakening to the news. A unanimous panel of the D.C. Circuit Court of Appeals ruled on Friday that the President’s non-recess recess appointments are illegal and an abuse of executive power.
On January 4, 2012, Mr. Obama bypassed the Senate’s advice and consent power by naming three new members of the National Labor Relations Board and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Other Presidents have made recess appointments and we’ve supported that executive authority.
But here’s the Obama kicker: He consciously made those “recess” appointments when the Senate wasn’t in recess but was conducting pro-forma sessions precisely so Mr. Obama couldn’t make a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.
In Noel Canning v. NLRB, a Washington state Pepsi bottler challenged a board decision on grounds that the recess appointments were invalid and that the NLRB thus lacked the three-member quorum required to conduct business. The D.C. Circuit agreed, while whistling a 98 mile-per-hour, chin-high fastball past the White House about the separation of powers.
In the 46-page opinion, the three-judge panel said that “not only logic and language, but also constitutional history” reject the President’s afflatus. The Federalist Papers refer to recess appointments expiring at the end of the following session of Congress, the court explained, so it stands to reason that recess appointments were intended to be made only when the Senate is in a recess between sessions, not any time the Senators step out of the Capitol.
“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,” wrote Chief Judge David Sentelle for the court, “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.”
Judge Sentelle added, in a clear warning to the lawyers who let Mr. Obama walk out on this limb, that “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”
In a particular surprise, two of the three judges also ruled that recess appointments are only allowed to fill vacancies that arise during the time the Senate is in actual recess. This has not been the recent practice, and it means that Presidents could not wait, say, until a recess in December to appoint a controversial replacement for a Secretary of State who resigned in October.
The court nonetheless makes a plausible case based on the text of the Constitution, government practice in the decades after ratification and legal precedent. Mr. Obama’s imperial overreach has invited the courts to re-examine the Constitution’s Appointments Clause and tilt the balance of power back toward the Senate.
Meantime, the ruling potentially invalidates dozens of NLRB decisions since the illegal recess appointments were made. A similar mess occurred in 2010 when the Supreme Court ruled in New Process Steel v. NLRB that some 600 decisions made by the NLRB without a three-member quorum were invalid.
The decision also means that Mr. Cordray has no authority to run the consumer financial bureau, which has been busy issuing thousands of pages of regulations since he was illegally imposed in the job. Mr. Obama renominated Mr. Cordray this week, which is an insult to the Senate and after this ruling to the Constitution too.
One question is whether Mr. Cordray can legally keep accepting his paycheck. Especially as a former Attorney General in Ohio, he ought to resign for having agreed to play along as a constitutional usurper.
White House spokesman Jay Carney criticized the unanimous decision Friday, which is consistent with the President’s sense of constitutional entitlement. Mr. Obama decided last year he could selectively enforce the immigration laws, exempting certain young people even if Congress hadn’t passed the Dream Act. We support the Dream Act but not his unilateral way of imposing it.Mr. Obama has also signaled his intention to govern as much as possible by stretching the legal bounds of regulation and executive orders. The D.C. Circuit ruling is thus a particularly timely warning that while Mr. Obama was re-elected, has most of the press in his pocket and is popular with 52% of the public, he’s subject to the rule of law like everybody else.A version of this article appeared January 26, 2013, on page A14 in the U.S. edition of The Wall Street Journal, with the headline: Obama’s Abuse of Power.