- Al Sharpton, Trayvon Martin’s parents rally against Fla. ‘stand your ground’ law
- Hillary Clinton campaign got illicit funds from D.C. scandal figure
- Obama administration backs off plan to cut prescription-drug program
- Tickets linked to stolen passports purchased by Iranian middleman
- More than 3,500 police planned for Boston Marathon
- Ottawa day care suspends 2-year-old for ‘outside’ cheese sandwich
- Liam Neeson tells NYC mayor to ‘man up’ in horse carriage fight
- Real-life Dr. Doolittle to reveal how to talk to animals
- Climate change could bring back smallpox, researchers say
- Shoe-bomb witness to speak from London at N.Y. trial
Third court overturns Obama recess appointments
A third federal appeals court ruled Wednesday that President Obama violated the Constitution last year when he made recess appointments to the National Labor Relations Board, adding more weight to the case as it goes before the Supreme Court in the justices’ next session.
The Fourth U.S. Circuit Court of Appeals, in a 2-1 decision, said that the president can only make recess appointments after Congress has adjourned “sine die,” which in modern times has meant when it breaks at the end of each year.
That ruling rejects Mr. Obama’s own interpretation that he can make appointments whenever he deems the Senate to be unable to give him “advice and consent” on his nominees.
After digging through constitutional history and reading up on the framers, the judges said it’s apparent the founding fathers intended for the president only to be able to use his recess appointment powers when the Senate was gone for a long period of time, not the brief breaks Congress regularly takes for holidays or weekends.
“All this points to the inescapable conclusion that the framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings,” Judge Clyde H. Hamilton wrote in his majority opinion.
He was joined by Judge Allyson K. Duncan, who filed a concurring opinion. Judge Hamilton was nominated to the bench by President George H.W. Bush and Judge Duncan was tapped by President George W. Bush.
In dissent, Judge Albert Diaz, whom Mr. Obama nominated to the court, said he read the same textual passages of the Constitution as the other two judges, but was unable to find a clear meaning, and he said he would have upheld the nominees as constitutional.
Mr. Obama made three recess appointments to the NLRB and one to the Consumer Financial Protection Bureau in January 2012, acting even though the Senate was meeting in pro forma sessions every three days specifically to deny the president his recess powers.
The founding document says the president may use his powers to fill “all vacancies that may happen during the recess of the Senate.”
Traditionally most presidents had abided by an informal rule that the Senate must have been out of session for 10 days in order to make recess appointments — though that doesn’t appear anywhere in the Constitution.
Mr. Obama argued that even though the Senate was meeting every three days, the pro forma sessions meant just a single senator was on the chamber floor for a brief time, and no real business was conducted, which meant the Senate was really not in session.
But Judge Hamilton said modern times have rendered that interpretation moot.
“At the time of the Constitution’s ratification, breaks between sessions of Congress typically were six to nine months. During such periods, it was unrealistic to think the Senate could perform its advice and consent function,” he wrote. “By contrast, there is no evidence that the Framers thought it was necessary to empower the president to make unilateral appointments while the Senate was adjourned within its session for short periods.”
The ruling matches those of federal appeals courts for the District of Columbia and the 3rd Circuit.
The Supreme Court has agreed to hear the case from the D.C. circuit when it begins its next term in the fall.
© Copyright 2014 The Washington Times, LLC. Click here for reprint permission.
About the Author
Stephen Dinan can be reached at email@example.com.
- CPAC 2014: Poll shows GOP discontent, Congress frustration
- U.S. has lost track of tens of thousands of foreign students who came study to then took jobs
- Border Patrol Chief: Agents can still shoot at rock throwers
- Rand Paul wins 2014 CPAC straw poll, Ted Cruz finishes a distant second
- Border Patrol policy still permits agents to shoot at rock-throwers
Latest Blog Entries
TWT Video Picks
By David Keene
Conference showed that the values Reagan cherished still endure
- FCC targets black conservative in TV station fight
- Kim Jong-un calls for execution of 33 Christians
- Hillary Clinton campaign received funds from Jeffrey Thompson
- Senate Democrats, Republicans spar over restoring unemployment benefits
- Sharyl Attkisson resigns from CBS after months of talks
- U.S. pilot scares off Iranians with 'Top Gun'-worthy stunt: 'You really ought to go home'
- DHS accused of holding U.S. citizen at airport, using emails to pry into her sex life
- Russias Putin nominated for Nobel Peace Prize
- 80 people publicly executed across North Korea for films, Bibles
- Mitch McConnell on beating tea party: 'We are going to crush them'
Pope Francis meets his 'mini-me'
Celebrity deaths in 2014
Winter storm hits states — again