Bloomberg News

Republican Lawmakers Argue Obama Appointments Unlawful

December 05, 2012

Republican lawmakers who failed to block President Barack Obama from installing administration officials without Senate approval in January asked a federal appeals court to rule the appointments unconstitutional.

Miguel Estrada, a lawyer representing Senate Minority Leader Mitch McConnell and 41 other Republican senators, told a three-judge panel of the U.S. Court of Appeals in Washington today that the president usurped the Senate’s powers with his appointment of three National Labor Relations Board members. Senate Republicans were allowed to argue the case along with the canning company that challenged the appointments.

Upholding the appointments would take a “break-glass-in- case-of-emergency” power and turn into “a background rule that allows our president to evade the role of the Senate,” Estrada told the judges during a one-hour argument while McConnell looked on from the audience.

Today’s argument was the second heard by a federal appeals court over objections to the president’s naming the NLRB members on Jan. 4 while the Senate was holding so-called pro-forma sessions that sometimes involved a single senator appearing in the chamber every third day.

Chicago Case

A three-judge panel of the U.S. Court of Appeals in Chicago heard argument on Nov. 30 in two cases brought by union members who are seeking to reverse board rulings made by the Obama appointees.

Obama cited his constitutional power to make so-called recess appointments while the Senate is out of session when he put the officials in their posts.

The Washington case is being considered by U.S. Circuit Judges David Sentelle, Karen LeCraft Henderson and Thomas Griffith, all three of whom were appointed by Republican presidents. The judges didn’t say today when they may rule in the case.

Disputes Avoided

Griffith, who was appointed by President George W. Bush, told the parties the appeals court has “assiduously stayed away” from separation of powers and appointments disputes, asking why Congress doesn’t use its own powers to “fight back” against the president rather than “drag us in.”

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

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

NLRB Appointments

Obama also put Cordray in the post on the same day as the NRLB board members. That appointment is also being contested in a lawsuit in federal court in Washington. The validity of the NLRB appointments has been raised in at least three other cases.

Beth Brinkmann, a Justice Department lawyer, argued that the Senate wasn’t in session or acting as a legislative body from Jan. 3 to Jan. 23 because no legislation was passed, no votes were held and no nominations were considered.

“Under the petitioners’ view, they create an appointment vacuum,” Brinkmann said.

The president used his authority to fill positions that if left vacant would have “substantially impaired the functioning of an executive branch agency,” the Justice Department said in court papers.

Recess Appointments

Obama 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.

The Washington case was filed by Noel Canning, a unit of closely held Noel Corp. The Yakima, Washington-based company is challenging the labor board’s Feb. 8 order requiring in part that it execute a collective bargaining agreement from December 2010.

Without a legal quorum, the board had no authority to issue the order, Noel Canning said in court filings.

Griffith pressed Brinkmann to identify the impetus for the president’s use of the power in January, noting that the Recess Appointments Clause of the Constitution was designed to allow senators to go home without disrupting the ability of the president to fill critical positions.

Executive Frustration

“What it’s being used for now is when the president becomes frustrated with the appointment process,” Griffith said. “The purpose has changed dramatically.”

Brinkmann said 285 appointments have been made during recesses. She said the president’s power is limited in that these appointments are only temporary.

Griffith and Sentelle asked whether two-year appointments could be considered temporary, noting that Congress couldn’t remove them from office.

Brinkmann said the Senate has the ability to refuse to pay the officials.

The judges asked where to draw the line on a Senate break that triggers the Recess Appointments Clause. Sentelle, who was appointed to the court by President Ronald Reagan, asked whether stopping business for the weekend or lunch would be sufficient.

“What’s the constitutional difference between two days and three days,” he asked.

‘Shared Understanding’

Brinkmann said there’s a “shared understanding between the executive and legislative branches for more than a century” that the recess occurs when the Senate is not available to conduct business.

The president doesn’t have the authority to decide whether the Senate is in session or not, Estrada said.

“The court must defer to the Senate calling its work a session absent evidence that that is a clear subterfuge,” Estrada said.

The case is Noel Canning v. National Labor Relations Board, 12-1115, 12-1153, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net.

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


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