Bloomberg News

Obama Recess Appointments Face First Appeals Court Test

November 30, 2012

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 heard argument today over the president’s Jan. 4 naming of three National Labor Relations Board members while the Senate was holding pro-forma sessions that sometimes involved a single senator appearing in the chamber every third day.

The nation’s founders “created a joint appointment power,” Glenn Taubman, an attorney for the National Right to Work Legal Foundation, told the judges.

The U.S. Constitution requires presidents to obtain “advice and consent” of the Senate before filling federal posts except when those vacancies occur during a recess. Senators have the power to block a presidential nominee for any reason or no reason at all, he said.

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.

Congressional Republicans opposed to the powers granted the Consumer Financial Protection Bureau, were seeking to block the president from appointing former Ohio Attorney General Richard Cordray as the new agency’s first head, having refused a confirmation vote since he was nominated in July.

Washington Lawsuit

Obama also appointed Cordray on Jan. 4. His appointment is being contested in a Washington lawsuit while the validity of the NLRB appointments has been raised in at least three other cases.

Beth Brinkmann, a U.S. Justice Department attorney, told the court today that the Senate wasn’t truly in session or acting as a legislative body between Jan. 3 and Jan. 23.

“There was no debate, no speech, no vote, during that 20- day period,” she said. The recess provision was created to ensure that the power to fill federal posts vests somewhere at all times, Brinkmann said.

Obama also 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.

Union Members

In the twin cases before the court today, four union members seek reversal of two April 18 NLRB rulings. In court papers, they argued the rulings were invalid because of the recess appointments.

They also challenged a decision by the panel upholding an earlier ruling that union members weren’t entitled to a refund of union dues used to fund political activities they opposed, even though the union couldn’t assess dues for such purposes in the future.

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

Brinkmann’s comments today echoed the arguments the administration made in court papers in September.

The Senate couldn’t transform a 20-day recess into a series of non-recess periods by having a lone senator gavel in for a few seconds every three or four days for what the Senate itself designates “pro forma sessions only with no business conducted,” the government argued.

29 Seconds

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

U.S. Circuit Judge Ilana Diamond Rovner, a 1992 appointee of Republican President George H.W. Bush, said the chamber could only stop an appointment if it was willing to remain in session.

“Congress has the power under the rule-making clause to do its business as it sees fit,” Taubman said.

“Isn’t the Senate having its cake and eating it too?” asked U.S. Circuit Judge Ann Claire Williams, a 1999 appointee of President Bill Clinton, a Democrat.

“Should the court be in the business of deciding, or is this the kind of decision that would enmesh us” in the business of other branches of government? Rovner asked.

The panel, which included U.S. Circuit Judge William J. Bauer, appointed by Republican President Gerald R. Ford in 1974, didn’t give any indication of when it might rule.

Too Political

University of Cincinnati (26584MF:US) law professor Christopher Bryant, who worked in the non-partisan Office of Senate Legal Counsel from 1997 through 1999, said the judges will probably avoid a decision on the merits of the recess appointments. They may rule the matter is too political for their jurisdiction, he said in an interview yesterday.

Rovner and Williams did press Taubman on whether his clients had standing to challenge the NLRB ruling, as his clients had consistently objected to their union dues being used for politics and they were pressing claims on behalf of union members who weren’t before the 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


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