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Federal Court Rules Recess Appointments Unconstitutional — What Say You?

A federal appeals court says recess appointments made by the president to the National Labor Relations Board were an unconstitutional use of executive power.

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?

Jim Ochery January 26, 2013 at 06:19 PM
The last question of the article is completely irrelavant to the actual "appointments" Obama made, and reasoning the judges used to make thier ruling. They did not rule that recess appointments are unconstitionall, they ruled that these appointments were made when the Senate was in session and therefore unconstitutional. Carney is talking to the low info voters. Next thing someone will be saying it was a racist decision because Obama is half African.
jim armstrong January 26, 2013 at 06:58 PM
" At that time, however, then-Sen. Obama said it was the wrong thing to do." <<<<obama for what he is a pathetic liar. tsk tsk tsk shame on him.
David Brown January 26, 2013 at 07:02 PM
I'm concerned about the possible political nature of Friday's ruling. The opinion was written by Chief Judge David Sentelle. Judge Sentelle was originally appointed to the federal bench by President Ronald Reagan. On the D.C. Circuit, Judge Sentelle voted to overturn the convictions of Oliver North and John Poindexter. It should also be pointed out that Friday's opinion by Judge Sentelle is directly at odds with a 2004 decision by the 11th U.S. Circuit Court of Appeals, here in Atlanta, which upheld President George W. Bush's recess appointment of a federal judge against a similar challenge.
Hal Schneider January 26, 2013 at 09:45 PM
I REPEAT, George Bush never made a recess appointment while the Senate was in ProForma session! Only Obama has attempted to do that, and he has been appropriately slapped down for it!
David Brown January 26, 2013 at 10:03 PM
Hal, I didn't expect any other response from you.:) As Chairman of the Forsyth County Tea Party, I realize that your visceral reaction is to oppose any action taken by President Obama. God bless you.
Hal Schneider January 26, 2013 at 10:31 PM
Especially when it is unconstitutional!
R++ One of the Famous Dacula Crew January 26, 2013 at 11:02 PM
@ David The response you have received is based on fact; the senate was in session - NOT recessed. The fact is that TWO types of actions are being discussed here and all other presidents followed the proper, legal path. The commentator’s political persuasion doesn’t change a thing and is thus immaterial. What makes this so interesting is the fact the SENATE majority leader at the time was of the same political party as the president and yet he couldn’t find a way to properly end the session? The really sad part is that a private entity that was wronged had to bring a legal action and bare the burden of all the legal cost itself. WHERE were the challenges of our other branches of government or is it simply falling to all of us to FORCE compliance from our leaders now?
Tim January 26, 2013 at 11:26 PM
Bahahahahaha......I LOVE IT!!!
David Brown January 27, 2013 at 02:40 AM
Am I the only reader that gets annoyed at "R" for his repeated screaming at Patch commenters by using capital letters?
R++ One of the Famous Dacula Crew January 27, 2013 at 03:40 AM
Nice to know that I'm heard ... Because I am INSUBORDINATE!
Good Grief Y'all January 27, 2013 at 01:13 PM
Republicans: "Do as we say, not as we do." This case isn't over. It will be appealed. I think Patch meant to say, "gaveling in and gaveling out", or more descriptively, "groveling"? The Senate needs to clean up its procedures and do the work for the American people. Trickery is bad for all. No, David, you're not.
Mary Jane January 27, 2013 at 01:15 PM
President Obama has pushed the limit on many issues. This is just one of the first things that will be ruled unconstitutional.
Mr. B January 27, 2013 at 02:01 PM
Blah, blah, blah. I'm a liberal therefore I'm above the law. I'll just blame it on Bush. I'll make up a bunch of crap and change the subject then all the conservatives (real Americans) will get lost. DAVID--I CAN'T HEAR YOU. WHAT ARE YOU RAMBLING ABOUT?
John Owens January 27, 2013 at 02:24 PM
I fear, that "The One" will be able to appoint two Supreme Court justices in his final term. Now he can have a liberal majority to rewrite the Constitution, as the give an interpretation of the what the framers intended.
R++ One of the Famous Dacula Crew January 27, 2013 at 09:59 PM
Yes the Senate sure does need to clean up its rules... The very rules established in the 1970s by gasp ... DEMOCRATS! It’s really pretty bad when you can’t play by the very rules you created. Just pass some more, so we can all find out whats in it. Remember it takes a village.
John B January 27, 2013 at 10:03 PM
Two posters above you R defines the village.
Tammy Osier January 27, 2013 at 10:46 PM
http://loganville.patch.com/blog_posts/first-principles-coconuts-2fd13f97 Concept of coconuts. Some like their coconuts and a portion yours too. If they decide to get generous, they'll use yours. That's the democratic way. ;)
Tammy Osier January 29, 2013 at 12:17 AM
WOW. Once this logical explanation as to why and how government gets corrupt and no more replies (on this one or the original post about coconuts). Must be some pangs of conviction out there in political land.
Karsten Torch January 29, 2013 at 10:24 PM
A couple of thoughts here - does it really surprise anybody that while Obama didn't like the practice before he became supreme ruler, he falls to using it now? That being said, I will say I'm confused about the 'not in session' part. They were out of town, closed up for the holidays, ergo - not available. What part of that makes them in session?
R++ One of the Famous Dacula Crew January 30, 2013 at 03:51 AM
Actually, they don't have be physically in town to be in session, like the Presidential auto pen, they can literally phone it in if the rules they choose to operate define it as such. In this case Senator Harry Reid's "rules of engagement" did just that... Sorry - edit to add ALL CAPS just for my "fans" ... Carry on.
Hal Schneider January 30, 2013 at 01:02 PM
The point is, the Senate has Rules. Under THEIR rules, they were NOT in recess. The POTUS can't arbitrarily ignore their rules and make up his own! The Supreme Court will confirm that!
Good Grief Y'all January 30, 2013 at 06:58 PM
Interesting how folks who vilify Senate Majority Leader Harry Reid are all for his rule at this particular time. Gimmicks always bite each side sooner or later. But neither side wants to give 'em up because of the potential future advantage. Off topic, but I'm a little mad at him because he compromised with McConnell for a weak agreement on filibuster reform.
Mr. B January 30, 2013 at 07:58 PM
Harry Reid can't tie his own shoes yet he leads the Senate. It's a shame.
r patton January 30, 2013 at 08:06 PM
History will show EVERYTHING King obama has done / will do will be ruled illegal, because some enterprising, young reporter will get the correct facts and win a Pulitizer Prize by proving the King IS not a citizen.
r patton January 30, 2013 at 08:07 PM
I think "Harry" has "Old Timers Disease" and is just walking in a cloud all day.
Good Grief Y'all January 30, 2013 at 09:05 PM
Oh my.
R++ One of the Famous Dacula Crew January 30, 2013 at 09:32 PM
It’s not his fault; he freely admits he just reads what’s put in front of him when he speaks in front of the Senate. NO thought required or applied. Just like the weather woman in those Jimmy Dean commercials …
R++ One of the Famous Dacula Crew January 30, 2013 at 09:39 PM
We don't / won’t soon have citizens … Just members of the entire world, so say we all.
R++ One of the Famous Dacula Crew January 30, 2013 at 09:41 PM
Lions, Tigers and Bears NOT included, some assembly required* *(Just not at any USA border)
R++ One of the Famous Dacula Crew January 30, 2013 at 09:42 PM
Sorry but we are not "for him" or this method of operation at all. However, that's how the Senate operates and that fact shouldn't escape such a so "nearly new" former senate member - or it that an unreasonable expectation as well?

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