- 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.

The judges were left searching for limits on either side — and wondering why they were being asked to decide at all.

“Why drag us into it?” Judge Griffith asked the plaintiffs, hinting that the court could duck the entire issue, calling it a political controversy between two equal branches of government that should be solved by the political system.

The plaintiffs include Noel Canning, a bottling company that brought the lawsuit; the U.S. Chamber of Commerce; and Mr. McConnell and 41 other Senate Republicans.

While Mr. McConnell took a position in the case, the whole Senate — controlled by Democrats — did not. That fact troubled Judge Griffith, who said the court is left guessing at whether the Senate did, in fact, consider itself in session when the appointments were made.

Democrats began using pro forma sessions to block nominees under President George W. Bush, but stopped when Mr. Obama took office in 2009. When the GOP took control of the House in 2011, however, it used another part of the Constitution — which prevents either chamber from being away for more than three days while the other is in session — to force the Senate to stay in session, thus preventing recess appointments.

Victor K. Williams, an assistant professor at the Catholic University of America School of Law who has filed an amicus brief in the D.C. case supporting the administration, said the judges don’t have jurisdiction to hear the case because it is a political question.

“President Obama needs a new lawyer,” he said, questioning why Ms. Brinkmann, the administration’s attorney, never raised the jurisdiction issue with the court.

He argues that the framers intended for the president to be able to fill all positions so that the laws can be faithfully executed.

“Judge Sentelle and Judge Griffith have yet to go back to the summer of 1787 that they claim to revel in. If they were to go back to the summer of 1787, they would see the framers were intent on restricting the legislature’s appointment role,” he said. “They would see the recess appointment clause, as I’ve tried to frame it in my amicus brief, was the capstone of a summer’s work to try to restrict the legislature.”

He said presidents were intended to have a free hand to staff offices.

While Judges Griffith and Sentelle peppered attorneys with questions, Judge Karen L. Henderson stayed out of most of the back-and-forth. Legal analysts also caution that oral arguments don’t necessarily foreshadow final decisions.

The D.C. challenge is one of several proceeding through the courts.

Last week, the 7th U.S. Circuit heard another case, and those judges were less impressed with the challenge. One judge described the danger of a president using a Senate lunch break to make appointments as “pure fantasy.”

But the D.C. circuit judges seemed to take that more seriously.

Miguel Estrada, who represented Senate Republicans in the case, said that if the court accepted Mr. Obama’s interpretation here, it would open the door for the president to also declare filibusters or other informal Senate traditions to be violations of his ability to get an up-or-down answer on a nominee.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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