President Obama was dealt a blow by a federal appeals court Friday, which curtailed his ability to make recess appointments. (Charles Dharapak / Associated Press)
By David G. Savage
January 25, 2013, 9:00 a.m.
WASHINGTON — A federal appeals court, dealing a defeat to President Obama, has sharply limited the chief executive’s power to bypass the Senate and to make temporary “recess” appointments to fill vacant slots in government agencies.
The Court of Appeals for the D.C. Circuit, in a 3-0 ruling, said the president can make recess appointments only when the Senate has formally adjourned between sessions of Congress, not when lawmakers leave Washington for a brief break.
The Obama administration is almost certain to appeal the decision to the Supreme Court. But if the ruling stands, it strengthens the power of the Senate’s Republican minority at the expense of Obama and the Democrats.
During his first term, Senate Republicans, led by Minority Leader Mitch McConnell (R-Ky), refused to approve Obama’s nominees for several agencies, including the National Labor Relations Board and the new Consumer Financial Protection Agency created in the wake of the Wall Street collapse of 2008. McConnell could rely on the filibuster rule by which the minority can block a vote by the majority.
In response, Obama invoked his power under the Constitution “to fill up all vacancies that may happen during the recess of the Senate.” Obama used this authority last January to appoint several new members to the National Labor Relations Board, ensuring the group had the necessary three members to make decisions. In addition to the NLRB appointments, Obama also installed Richard Cordray as director of the Consumer Financial Protection Bureau at the same time.
Business groups and Senate Republicans challenged the move, arguing the Senate was not truly in recess last January when it was out of session for several days.
In Friday’s decision, Chief Judge David Sentelle ruled for the challengers and said a “recess” refers to the break when Congress formally adjourns after a two-year session.
“An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law,” said Sentelle, an appointee of President Reagan. He was joined by Judges Karen Henderson and Thomas Griffith, who are also Republican appointees.
Cordray’s appointment is being challenged in U.S. District Court in Washington, D.C., in a separate lawsuit by a Texas bank and two free-market advocacy groups. They also claim the appointment was unconstitutional because the Senate was not in a formal recess. The suit is pending.
On Thursday, Obama renominated Cordray to the five-year term as director of the 2-year-old agency. Cordray’s recess appointment expires at the end of the year.
Obama said Thursday that Cordray was qualified for the position, but “he wasn’t allowed an up or down vote in the Senate, and as a consequence, I took action to appoint him on my own.”