Speaking for the court, Chief Judge David B. Sentelle wrote,
“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.”
Unconstitutional Recess Appointments: Effects of the Decision
The ruling by the court calls into question all decisions made by the NLRB since the recess appointments were made a year ago. Not only that, but the Board does not now have a proper quorum of members who were appointed after confirmation by the Senate. According to the NLRB, it will continue to sit, which will call into question any future decisions made without a proper quorum as defined by the court.
The ruling also calls into question other ‘recess’ appointments made by President Obama, such as that of Richard Corday. Obama appointed Corday to the head of the Consumer Financial Protection Bureau (CFPB) at the same time as he made the appointments to the NLRB.
Upon the release of the decision, White House Press Secretary Jay Carney said, “It contradicts 150 years of practice by Democratic and Republican administrations. So we respectfully but strongly disagree with the ruling.”
No Recess Appointments?
If the decision stands, it will greatly affect the ability of not only Obama, but all future presidents, to make recess appointments when Congress is technically in session, but really in recess.
The Obama administration is expected to appeal the case to the U.S. Supreme Court.
US Courts. Noel Canning, a Division of the Noel Corporation v. National Labor Relations Board . (2013). Accessed January 27, 2013.
New York Times. Court Rejects Obama Move to Fill Posts. (2013). Accessed January 27, 2013.
Fox News. Court opinion throw labor panel rulings, operations into question as White House slams decision. (2013). Accessed January 27, 2013.
Congressional Research Service. Recess Appointments: Frequently Asked Questions . (2012). Accessed January 27, 2013.
Policy Mic. Obama Recess Appointments: Court Says They’re Unconstitutional. (2013). Accessed January 27, 2013.
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