Well, it wasn’t a good day for Obama. Besides the March for Life, Roll Call’s John Gramlich, Lauren Smith, and Ben Weyl wrote that, “the three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled 3-0 that Obama overstepped his constitutional authority when he made three appointments to the NLRB while the Senate was on a holiday break in January 2012. PJ’s Stephen Green posted on this development on the Tatler yesterday. The Constitution allows the president to make such appointments when the senate is in recess, but ”the court says the Senate technically stayed in session when lawmakers gaveled in and out every few days for so-called ‘pro forma’ sessions.” As Green noted, this was intentionally done to keep Obama’s pro-union appointees to the National Labor Relations Board at bay.
Needless to say, The White House wasn’t happy.
“The decision is novel and unprecedented,” White House spokesman Jay Carney said. “It contradicts 150 years of practice by Democratic and Republican administrations.” According to the Congressional Research Service, he said, presidents have made more than 280 recess appointments since 1867.
The court case was brought by Noel Canning, a small bottling company in Washington state, that sued the NLRB. The labor board had determined that the company had not bargained in good faith with the union representing its employees. But Noel Canning countered that the NLRB’s ruling should not be upheld because the agency’s three recess appointees were not valid members. Last September, 42 Senate Republicans filed an amicus brief in the case on behalf of Noel Canning.
What happens next? Well, the NLRB is in a fix, because everything it’s done in the last year is now up for constitutional challenge. Also if the D.C. Circuit is right, it only has one member with a valid appointment, which means no quorum. And the appointment of Richard Cordray, head the Consumer Financial Protection Bureau, is also in limbo, since he too got his job on Jan. 4, 2012. The Obama administration can appeal to the whole D.C. Circuit for what’s calleden banc review—a do-over with eight of the court’s 13 judges.* Or it can go straight to the Supreme Court. The Obama lawyers must be making their own turtle faces right about now.*Correction, Jan. 25, 2013: This article originally stated that the D.C. Circuit has 13 judges. That’s true, but five of the 13 have senior status and do not hear en banc cases.