Obama Recess Appointments Face First Appeals Court Test

By Andrew Harris – Nov 30, 2012 12:00 AM ET

President Barack Obama’s authority to make appointments without U.S. Senate approval is being considered by an appeals court for the first time in a test of so-called pro-forma sessions set up by Republican lawmakers.

A three-judge panel of the U.S. Court of Appeals in Chicago is scheduled today to review the president’s Jan. 4 naming of three National Labor Relations Board members while the Senate was holding pro-forma sessions that sometimes involved one senator appearing in the chamber every third day.

Also on Jan. 4, Obama appointed former Ohio Attorney General Richard Cordray as the first director of the Consumer Financial Protection Bureau, an agency created to monitor banks’ consumer lending practices.

While Cordray’s hiring isn’t the subject of today’s hearing, it is contested in a Washington lawsuit challenging the financial reform legislation under which the CFPB and Cordray’s job were created. Challenges to the validity of the NLRB appointments have been raised in at least three other cases.

“On every single ground, I think the administration is wrong,” New York University law professor Richard Epstein said of the dispute. Epstein, who isn’t involved in the litigation, said the president’s actions breached the U.S. Constitution’s separation of powers.

The U.S. Constitution requires presidents to obtain “advice and consent” of the Senate before filling federal posts, except when those vacancies happen during a recess.

‘Reasonable Understanding’

To prevent Obama from appointing officials after Congress started a holiday break last December, House and Senate Republicans refused to adopt a resolution to formally adjourn.

“These appointments were valid because the Senate was plainly in ‘recess’ at the time under any reasonable understanding of the word,” attorneys for the Obama administration argued in court filings.

The Senate couldn’t transform a 20-day recess into a series of short non-recess periods —- thereby unilaterally blocking the president from exercising his constitutional appointment authority — by having a lone senator gavel in for a few seconds every three or four days for what the Senate itself formally designates “pro forma sessions only with no business conducted,” lawyers for the administration said in an appeals court brief filed in September.

They said one such session, on Jan. 6, lasted 29 seconds before the Virginia Democrat Jim Webb, the sole Senator present, adjourned proceedings until Jan. 10.

Political

University of Cincinnati law professor Christopher Bryant, who worked in the non-partisan Office of Senate Legal Counsel from 1997 through 1999, said the issue may be so political that it is beyond the ability of the courts to decide who is right.

“Ultimately you want to ask, ‘What’s the purpose of the recess appointments clause?’” Bryant said.

The president made the January appointments after Congressional Republicans, opposed to the powers granted the Consumer Financial Protection Bureau, declared they wouldn’t approve a nomination of now-U.S. Senator-elect Elizabeth Warren of Massachusetts as its director and blocked a Cordray confirmation vote when he was nominated in July.

Obama also made named Sharon Block, Richard Griffin and Terence Flynn to the NLRB after Board Member Craig Becker’s recess appointment ended on Jan. 3, leaving the five-person panel short of a quorum. The NLRB still has one vacant seat.

Anti-Union Group

In twin cases before the appeals court today, four men seek reversal of two April 18 NLRB rulings. Their lawyers argued the rulings were legally wrong and invalid because the board wasn’t legally appointed.

The men are represented by the National Right to Work Legal Foundation, a Springfield, Virginia-based advocacy group whose stated mission is to “eliminate coercive union power and compulsory unionism abuses.”

They’re challenging the panel’s decision to uphold a ruling that, while they shouldn’t have been assessed union dues to fund political activities they opposed, they weren’t entitled to a refund. The board ruled that the relief granted was prospective only.

The NLRB also denied the men’s motions to disqualify Obama’s appointees because the Senate wasn’t in recess.

Sole Authority

“The president’s determination that the pro forma sessions were ineffective shams is factually and legally wrong,” National Right to Work attorneys said in a July 30 court filing.

Obama’s actions undermine the separation of powers of the federal government’s executive, legislative and judicial branches, they said. “The Senate has the sole authority to declare when it is and is not in session,” the National Right to Work lawyers said.

“Was the senate in session?” NYU’s Epstein asked rhetorically. “The answer has always been each house is the master of its own rules. The president cannot decide if this is a sham if the Senate says that it isn’t.”

Bryant questioned whether leaving the Senate lights on means the chamber is truly open for business.

“If the Senate is unable to act, having somebody there to log in doesn’t really change the fact that the president is unable to get action on the senate nomination,” he said.

Bryant predicted the appeals court would look to avoid deciding on the merits of the recess appointments, perhaps ruling that the matter was political and shouldn’t be decided by a court.

On March 2, a federal judge in Washington declined to rule on the recess appointments issue when it was raised in a lawsuit over a rule requiring companies to tell workers of their rights to form a union.

Republican lawmakers have filed a friend-of-the-court brief in another dispute over recess appointments that is scheduled to be heard by the U.S. Court of Appeals in Washington on Dec. 5.

The cases are Richards v. National Labor Relations Board, 12-1973, and Lugo v. National Labor Relations Board, 12-1984, U.S. Court of Appeals for the Seventh Circuit (Chicago).

To contact the reporter on this story: Andrew Harris in Chicago at aharris16@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net