- The Washington Times - Monday, January 28, 2013

The federal appeals court ruling last week finding President Obama abused his recess appointment powers harkened back to a vision of the Constitution that many thought long dead, and could upend decades of practice by Republicans and Democrats.

In the short term, the ruling by a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia holds that Mr. Obama illegally bypassed Congress to name three members of the National Labor Relations Board — calling into question hundreds of decisions made by the board in the year since the appointments.

But the judges’ ruling has the power to upend far more. If it withstands what’s almost certain to be an eventual Supreme Court review, it would reduce the president’s recess appointment powers to a shadow of what they have been during the past 60 years.

The judges were unapologetic for the chaos that the decision might cause.

“If some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands,” the three judges, all appointees of Republican presidents, wrote in their opinion.

Republicans said the ruling amounts to a black mark for the Obama administration, which they think has repeatedly stretched the limits of the Constitution. This time, they say, a court has pushed back.

The White House called the decision a threat to decades of common practice.

Whatever the Supreme Court decides, the case leaves Mr. Obama with a major constitutional question as he begins his second term.

The relevant section of the Constitution reads: “The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

The ruling has two main holdings. The first is that the president’s recess powers were designed to fill vacancies during what the Constitution calls “the recess.” The judges said the singular article “the” must refer only to the break after Congress adjourns sine die, which in modern times means when it goes home at the end of a year.

The second holding is that the power applies only to vacancies that arise during that recess.

For decades, presidents have thought that they could use their recess powers for any vacancies no matter when they occur, and have thought they could make appointments as long as Congress recesses for as little as three days.

Michael A. Carrier, a professor at Rutgers University School of Law, said the appeals court panel’s understanding of the Constitution is probably what the Founding Fathers had in mind.

“At the time that the framers drafted the clause, the Senate was a very different place. They would meet for a few months and disband for the rest of the year — six to nine months. And so you really did need the recess appointments clause,” he said.

Now, with the Senate meeting almost year-round and members able to return to Washington at a moment’s notice, the original intent has become less important.

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