- The Washington Times - Thursday, May 16, 2013

A federal appeals court ruled Thursday that President Obama violated the Constitution when he made a recess appointment to the National Labor Relations Board, marking the second panel to rebuke the administration and making the issue even more likely to draw Supreme Court scrutiny.

The 2-1 ruling by the 3rd U.S. Circuit Court of Appeals said Mr. Obama can use his appointment powers only after Congress has adjourned for the year. The decision is complex but legally hefty, and has far-ranging implications for the way the president and the Senate handle nominations.

The 3rd Circuit now joins the D.C. Circuit Court of Appeals, which earlier this year ruled 3-0 against two different Obama recess appointments.

“This is a difficult question that has never been addressed by our Court or the Supreme Court. We hold that ‘the Recess of the Senate’ in the Recess Appointments Clause refers to only intersession breaks,” Judge D. Brooks Smith wrote in the majority opinion.

If the decisions stand, they would dramatically limit when presidents can bypass the Senate. That would enhance the power of that chamber’s minority party, who could use a filibuster to keep some positions vacant in perpetuity.

The D.C. case involved appointments Mr. Obama made last year to the National Labor Relations Board, while the Senate was meeting every few days specifically in order to deny the president his recess powers. Under long-standing tradition, presidents had refrained from making appointments if the Senate didn’t go out on a break longer than 10 days.

But the 3rd Circuit case involved a 2010 appointment to the NLRB that came when the Senate was in a 17-day recess, which the court said clearly outside the 10-day standard.

Despite reaching the same ruling overturning Mr. Obama’s appointments, the D.C. Circuit and the 3rd Circuit took different paths to get there.

The D.C. panel ruled that the NLRB appointments were invalid because the Constitution only gives the president power to nominate someone during “the recess” of the Senate. That court said the word “the” implied a single break, which must mean after Congress has adjourned for the year.

The court went further, though, saying that because the vacancies didn’t arise during “the recess,” the positions weren’t even able to be filled by recess appointments.

The 3rd Circuit judges didn’t grapple with when the vacancies arose, and weren’t swayed by using “the” before “recess.” Instead, they looked at how states defined “recess” during the founding era, and then looked to other parts of the Constitution for context, deciding that the Framers must have intended a limited power.

Judge Smith wrote that the Founders of the country took pains to make sure both the president and Congress had a role in filling important offices — a decision they made after observing the unilateral powers of appointments under the British crown.

All of the judges involved in both courts said they were searching for a limiting principle.

Taken to one extreme, the president could make recess appointments when the Senate adjourned for two hours for its weekly party caucus lunches every Tuesday.

“Defining recess in this way would eviscerate the divided-powers framework the two Appointments Clauses establish,” Judge Smith wrote. “If the Senate refused to confirm a president’s nominees, then the president could circumvent the Senate’s constitutional role simply by waiting until senators go home for the evening.”

But Judge Joseph A. Greenaway Jr., in his dissent, said the other extreme also is possible — that the Senate can gum up all nominations by refusing to act, and staying in pro forma sessions where they can’t conduct business but can deny the president his powers.

“By basing the recess appointment power on the Senate’s procedure, the majority has committed the Recess Appointments Clause to the Senate’s discretion and procedural manipulations,” Judge Greenaway wrote.

Both of the judges who overturned Mr. Obama’s appointment were nominated by President George W. Bush, while Judge Greenaway was nominated by Mr. Obama.

Senate Minority Leader Mitch McConnell, who has led the fight against the recess appointments, cheered the ruling and said the officers who were appointed through the questionable recess powers should take a hint from the judges’ decision.

“It’s time for the unlawfully appointed nominees to step down,” the Kentucky Republican said.

The Obama administration already has appealed the D.C. ruling to the Supreme Court.

In that case, the administration spent most of its appeal brief attacking the court’s ruling that the president can’t even make an appointment unless the vacancy itself happened while the Senate was in “the recess.”

That will be more difficult to do in the 3rd Circuit case, which doesn’t address when vacancies arise and instead focuses on the appointment power itself.

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

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