- The Washington Times - Wednesday, December 5, 2012

A federal appeals court cast doubt Wednesday not only on President Obama’s controversial January recess appointments but on most such appointments, using oral arguments to question whether presidential powers can ever be used unless Congress has officially adjourned for the end of a year.

If they end up ruling that broadly, it would mark a major break with decades of accepted practice and conceivably would call into question scores of government decisions made by officials appointed under recess powers.

The case stems from Mr. Obama’s Jan. 4 decision to appoint three members to the National Labor Relations Board, making an end run around senators who had been holding up confirmation of the nominees.

Mr. Obama argued that since the full Senate wasn’t meeting regularly, it was technically in an intrasession “recess.” But two judges on the U.S. Court of Appeals for the D.C. Circuit questioned that, saying the Constitution could be read to allow such appointments only in the intersession recesses after Congress goes home at the end of each year.

“Once you remove yourself from the principles set forth in the Constitution — intersession versus intrasession — you are adrift,” said Judge Thomas B. Griffith.

But Beth Brinkmann, the Obama administration attorney who defended the president’s move, said restricting his recess powers would walk back centuries of established practice.

“There is a long, long history that would be disrupted, and also disrupt the balance of power,” she said.

She said nearly 300 recess intrasession appointments have been made over the past century, and the Senate and the president have accepted them as legitimate, as well as other federal appeals courts.

Chief Judge David B. Sentelle said he wasn’t bothered by the chance to disagree with other courts and that his reading of the Constitution suggests that the founders intended for only limited recess appointment powers.

“Forget about a century of precedent — go back to the Constitution,” he said.

The Constitution gives the president the power to nominate judges and executive branch officials, but the Senate must vote to confirm them before they take office. Article II, Section 2 of the Constitution grants the president powers “to fill up all vacancies that may happen during the recess of the Senate.”

Those powers have produced centuries of give-and-take, with senators regularly slow-walking nominees and the White House looking for ways to get its way — including the recess appointment.

Mr. Obama’s move, though, appeared to break new ground by acting at a time when the Senate was meeting every third day, specifically to deny him the chance to make appointments.

The president argues that even though the Senate was convening, the pro forma sessions didn’t allow any business, and nearly every senator was absent from the chamber, signaling that the Senate wasn’t able to perform its confirmation duties and should be considered essentially in recess.

His opponents, including Senate Minority Leader Mitch McConnell, Kentucky Republican, say if Mr. Obama’s stance prevails, then presidents could make appointments when the Senate takes its recess for weekly party caucus lunches.

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