A challenge to President Barack Obama’s recess appointments of three members to his National Labor Relations Board proved successful. According to CNN, a three-judge panel unanimously ruled Friday that the president violated the Constitution when he made the appointments.
"Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers," the judges from the U.S. Court of Appeals for the District of Columbia Circuit said. "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."
This president, however, is not the first to use this practice. President George W. Bush is reported to have used it more often during his terms than Obama has. At that time, however, then-Sen. Obama said it was the wrong thing to do. It has been used by other presidents as well, especially when it is believed that the opposition party is "gravelling in and gravelling out" to give the appearance of being in session to avoid allowing for such appointments.
According to CNN, the White House says Friday's ruling is "novel and unprecedented."
"It contradicts 150 years of practice by Democratic and Republican administrations,” Jay Carney, White House press secretary reportedly said. “So we respectfully, but strongly disagree with the rulings. There have been — according to the Congressional Research Service — something like 280 plus intra-session recess appointments by, Democratic and Republican administration dating back to 1867. That’s a long time and quite a significant precedent.”
What do you think? Is this type of recess appointment unconstitutional? And if so, should they have been ruled that way in the past too?