- The Washington Times - Wednesday, July 17, 2013

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.

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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.

On Tuesday, Mr. Obama agreed to withdraw the nominations of two of the NLRB appointees and replace them with others. But the Senate voted to confirm the consumer protection bureau nominee to a full term.

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

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