Friday, January 25, 2013

Obama's Recess Appointments Struck Down by U.S. Court of Appeals for the D.C. Circuit

It's a Beltway wonkish kind of buzz surrounding this decision today, out of the Federal Appeals Court for the D.C. Circuit. The Fox News All-Stars, at the clip, are largely deconstructing what in fact happened rather than providing a larger analytical interpretation (although Bret Baier points out repeatedly how significant a decision this was). And then see the New York Times' report, "Court Rejects Recess Appointments to Labor Board":

WASHINGTON — In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago.

The ruling was a blow to the administration and a victory for Mr. Obama’s Republican critics – and a handful of liberal ones – who had accused Mr. Obama of improperly claiming that he could make the appointments under his executive powers. The administration had argued that the president could decide that senators were really on a lengthy recess even though the Senate considered itself to be meeting in “pro forma” sessions.

But the court went beyond the narrow dispute over pro forma sessions and issued a far more sweeping ruling than expected. Legal specialists said its reasoning would virtually eliminate the recess appointment power for all future presidents when it has become increasingly difficult for presidents to win Senate confirmation for their nominees. In recent years, senators have more frequently balked at consenting to executive appointments. President George W. Bush made about 170 such appointments, including John R. Bolton to be ambassador to the United Nations and two appeals court judges, William H. Pryor Jr. and Charles W. Pickering Sr.

“If this opinion stands, I think it will fundamentally alter the balance between the Senate and the president by limiting the president’s ability to keep offices filled,” said John P. Elwood, who handled recess appointment issues for the Justice Department during the Bush administration. “This is certainly a red-letter day in presidential appointment power.
And more from John P. Elwood, at Volokh, "DC Circuit Strikes Down President Obama’s Recess Appointments."