Breitbart News reported on Jan. 25 that the federal appeals court in Washington, D.C. declared President Barack Obama’s recess appointments unconstitutional. Now another federal appeals court has done so as well, all but guaranteeing the Supreme Court will take up this issue in what could become a major defeat for the president.
To recap: the U.S. Senate was holding short, pro forma sessions every third day–usually with only a single senator–to prevent the Senate from going into recess and thereby allow Obama to appoint high-ranking government officials for temporary terms without Senate confirmation. This process began under Senate Democrats to stymie recess appointments by President George W. Bush.
Then Obama took the unprecedented step of declaring that, for purposes of the Constitution, the Senate is in recess whenever there are not enough senators present to conduct business, even if the Senate claims it is still in session.
Under that theory, the president can bypass the Senate any time they go home at night, since at midnight there are not enough senators on the Senate floor to pass legislation. Obama then made several recess appointments, including filling the vacancies in the National Labor Relations Board (NLRB) with labor activists who support Obama’s agenda.
In Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held these appointments were unconstitutional several months ago. Now in NLRB v. New Vista Nursing and Rehabilitation, LLC, the U.S. Court of Appeals for the Third Circuit has done the same in a 2-1 decision.
Like its sister court in D.C., the Philadelphia-based appeals court held that although presidents of both parties since the 1970s have made recess appointments whenever the Senate adjourns for more than a few days, the original meaning of the Constitution’s Recess Appointments Clause only enables presidents to fill vacancies in Senate-confirmed positions during “the Recess” of the Senate, referring to the year-end recess between Congress’ yearly sessions.
Obama’s appointments were therefore unconstitutional. As such, every order and decision issued by the NLRB over a period of more than a year would be invalid, carrying no force of law.
The Obama administration recently filed a petition with the Supreme Court asking the Court to review the D.C. Circuit’s decision. Although the Supreme Court was almost certain to grant that petition anyway, with the Third Circuit now likewise ruling countless NLRB actions illegal, it is all but certain the Supreme Court will hear arguments on this issue in the fall.
The justices will vote on the Obama administration’s petition for review in June.
Breitbart News legal columnist Ken Klukowski is on faculty at Liberty University School of Law.