Republicans in Congress are demanding that two members of the National Labor Relations Board and the head of a new consumer financial watchdog agency resign their posts in the Obama Administration, as Political Washington tries to digest a sweeping appeals court ruling that would drastically limit the power of a President to use “recess appointments.”
“As someone who has taken an oath to uphold the Constitution, I ask that you resign immediately,” wrote Sen. Mike Johanns (R-NE) on Friday to Richard Griffin, a member of the NLRB who was installed in that position by President Obama in January of 2012.
Griffin’s recess appointment, as well as that of a second NLRB member, was declared unconstitutional on Friday by a federal appeals court in Washington, D.C., which said that President Obama had wrongly installed his picks when the Senate was not actually in recess.
That outcome was expected by some legal scholars, since the standard procedure in recent years has been that a President can install nominees through recess appointments when the Senate has left town on an official adjournment; in this case, the Senate was meeting every three days as required in the Constitution.
But this ruling, which can be read here, went one big step further, by saying that no President can make a recess appointment during a session of Congress, but only in between sessions, when the House and Senate are not in Washington, D.C.
That decision runs against a number of years of expanding Presidential use of recess appointments, which are often deployed “intrasession” – that is, during recesses which occur while the Congress is in session.
“The available evidence shows that no President attempted to make an intrasession recess appointment for 80 years after the Constitution was ratified,” the three member appeals panel wrote in this decision, which would seemingly take Presidential powers in this arena back to the original years of the Founding Fathers.
“Presidents made only three documented intrasession recess appointments prior to 1947,” the judges wrote in their decision, saying the first was by Andrew Johnson in 1867, “with the other two coming during the presidencies of Calvin Coolidge and Warren Harding.”
Despite the decision, the two NLRB members involved in this case weren’t giving up their seats, and the board rejected the idea that its actions for the past year could all be found invalid as a result.
“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld,” said NLRB Chairman Mark Gaston Pearce.
At this point, the Obama Administration could appeal the decision to the full D.C. Circuit Court of Appeals, or go directly to the U.S. Supreme Court.
Also in play here is President Obama’s choice to run the new Consumer Financial Protection Board, Richard Cordray, who also was recess appointed to that position at the same time as the NLRB officials.
The White House rejected any assertion that any of those appointments could be called into question by this ruling, though spokesman Jay Carney stopped short of announcing an appeal of the decision.
“There have been, according to the Congressional Research Service, something like 280-plus intrasession recess appointments by, again, Democratic and Republican administrations, dating back to 1867,” Carney told reporters.
“That’s a long time and quite a significant precedent,” he added.
While Carney is correct, the President’s timing for his recess appointments was controversial for another reason, because the Senate was not technically out of session.
Yes, no legislative business was being conducted, but the Senate was meeting every few days in “pro-forma” sessions to satisfy requirements in the Constitution, a technique that had been used by Democrats in 2007 and 2008 to prevent more recess appointments by President George W. Bush.
“Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days,” is what the Constitution says.
Readers of my blog and listeners to my news reports are familiar with my observations from Capitol Hill that Republicans and Democrats often change their arguments on certain issues, not based upon the facts of the matter involved, but on whether their party is in power in the White House or the Congress.
The filibuster is a good example of that; the party that tries to limit the filibuster routinely is the party that is in majority control of the Senate. The minority loves the filibuster, except when they are in the majority in future years.
And so, when it comes to limits on Presidential power to make a recess appointment, the parties alternately raise hell or stay quiet depending on whether their party controls the White House as the earlier example cited above, when Democrats used pro-forma sessions in the Senate to block Bush recess picks back in 2007 and 2008.
In this case, Democrats have kept quiet about the Obama recess appointments which were ruled unconstitutional, but a few years ago, we had the exact opposite situation, when Democrats challenged recess appointments to the circuit court of Appeals by President George W. Bush; the courts ultimately upheld the Bush appointment of William Pryor.
And round and round we go.
Where this stops – maybe the U.S. Supreme Court.