- 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.

Instead, said John Isaacson, director of www.presidential-appointments.org, presidents now use their powers to do an end run around the Senate.

“Most of the time, it was not because the Senate was out of business, but because the Senate wouldn’t confirm,” Mr. Isaacson said. “The whole business since the Second World War is related to the contentiousness between the different parts of the federal government.”

But Victor K. Williams, an assistant professor at Catholic University School of Law who filed briefs arguing that the court should reject the case as a political question between Congress and the president, called the judges’ ruling “historically wrong.”

He said the Founding Fathers intended the president to be able to fill positions and that it’s part of the president’s duty to see that the laws are executed.

“This panel of the D.C. Circuit has accomplished what Minority Leader Mitch McConnell failed to do. Minority Leader McConnell said that his No. 1 objective was defeating Barack Obama and Barack Obama’s attempt to govern. This D.C. Circuit panel has been successful where McConnell failed. They have really, effectively challenged the president’s ability to govern,” Mr. Williams said.

The White House now faces some decisions, Mr. Williams said.

It can appeal to the Supreme Court, or it can wait for several other recess appointment cases to make their way through the courts. Alternatively, it could ask the whole D.C. circuit to hear the case en banc — though that option is less likely.

The White House isn’t tipping its hand, but press secretary Jay Carney called the ruling “novel and unprecedented.” He said it contradicts 150 years of practice by presidents of both parties.

“We respectfully but strongly disagree with the rulings,” he said.

Noel Francisco, a lawyer at Jones Day who argued the case for the U.S. Chamber of Commerce and for Noel Canning, the bottling company that challenged the NLRB appointments, said the court returned to the Constitution’s intent, which was to make the recess appointment an emergency power for use only when Congress is not available.

“Issues like this — it’s not about protecting the Congress from the president and the president from Congress,” Mr. Francisco said. “The Constitution draws these lines ultimately to limit the government to protect the people.”

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