Isakson, Wesmoreland, and NFIB of Georgia Applaud Court’s Ruling On Recess Appointments

January 29, 2013 8:57 am

by Nathan · 12 comments

In amongst the breaking Georgia news of our senior US Senator deciding to retire, a federal appeals court in DC ruled that President Barack Obama’s recess appointments made in January of 2012 were unconstitutional.

From junior (soon to be senior) US Senator Johnny Isakson who joined with 38 other senators in filing an amicus brief and joined a court challenge of President Obama’s recess appointments on January 4, 2012:

“This court ruling is a great victory for the U.S. Constitution,” said Isakson. “This decision confirms my belief that the president disregarded the Constitution when making his so-called recess appointments to the National Labor Relations Board. I hope this sends a clear message to the president that he cannot simply bypass Congress in the nomination process.”

From Congressman Lynn Westmoreland (R-GA-03):

“I would like to thank the US Court of Appeals for their ruling today,” stated Westmoreland.  “For far too long this president has circumvented the Constitution and side-stepped Congress any time he didn’t get his way.  Today’s decision has rejected his ‘my way or the highway’ approach to government and will hopefully serve as a wake-up call to him and his staff that he cannot simply dictate the rule of law whether it violates the Constitution or not.”

In the decision in the case, Noel Canning v. National Labor Relations Board, the Court ruled that recess appointments can only be made during a congressional recess when the vacancies arise.  In addition, they ruled a recess under the Constitution is limited to the period between one Congress and the next – not in the breaks a Congress takes to spend time in their district.  If upheld, any rulings or decisions made by the National Labor Relations Board since the unlawful appointments were made will be invalidated.  The Obama Administration is expected to appeal the decision to the U.S. Supreme Court, but it is unclear whether the Court will choose to hear the case.

From the Georgia chapter of the National Federation of Independent Business:

“We’re thrilled that the D.C. Circuit court agreed with us – in short, that President Obama overstepped his constitutional authority in making recess appointments to the NLRB.

“Small-business owners throughout the country have suffered under the unabashedly pro-union decisions handed down by the NLRB. They deserve to be protected from unconstitutional acts that exacerbate the NLRB’s devolution from a neutral arbiter between labor and employers to a pro-union government agency.”

This will no doubt wind its way to the US Supreme Court and may interpret what they believe the definition of “recess” is when it comes to making appointments.  It’s dangerous to have a president who is willing to interpret the definition of “recess” whenever he’s displeased with the Senate.  For all intents and purposes, and disagree if you must, but there would be a chance that it could come down to where the president may decide that the Senate is in “recess” as long as they are not occupying their chamber.  However, this behavior isn’t surprising since the President has announced that he doesn’t need Congress to move forward with his policies as well as bully the Supremes (the High Court, not the musical group) when he wants things done his way.

The Constitution established a federal government with co-equal branches to check and balance against each other.  It seems President Obama believes that the Legislative and Judicial branches are subordinate to the Executive.

David C January 29, 2013 at 9:26 am

Yay for Judicial Activism when it’s good for our side, right? This overly broad decision writes out 150 years of precedent in regards to the recess appointment power–used by Republican and Democratic Presidents alike, including President Bush to appoint John Bolton–and does it in a particularly awful bit of textual interpretation.

It is about Separation of Powers: The Recess Appointment exists to balance the Senate’s tools of obstruction: The filibuster, the secret hold, the phony session etc. It lets the President appoint someone, but not for life: Just the 2 year term of the Congress. What this court pretends is that the President should have the narrowest possible interpretation of his power and the Senate the broadest. It’s atrocious from a Constitutional law standpoint.

seenbetrdayz January 29, 2013 at 1:24 pm

Depends on where you studied constitutional law, I guess.

The president is supposed to have the least amount of power of the branches. Far too often the Congress just gives a president what he wants, particularly if the majority holds the Oval Office and Congress.

peachstealth January 29, 2013 at 11:58 am

Holding the Senate in pro-forma session to prevent recess appointments was the brainchild of Harry Reid. He used it during the last two years of the Bush term. President Bush never challenged it.
The Constitution gives each house of congress the power to write it’s own rules. If the Senate says it was in session, it was in session.

David C January 29, 2013 at 12:18 pm

But going beyond it to decide that a) the Senate is perpetually in session save for the incredibly short inersession recesses and b) That only vacancies that occur during those vacancies can actually be filled is bizarre constitutional balderdash of the highest order that runs counter to, among other things, the actual founding fathers:

http://www.newrepublic.com/article/112264/recess-appointments-dc-circuit-court-reinterprets-constitution

mpierce January 29, 2013 at 10:47 pm

b) From your linked article:”It was Monroe’s attorney general, William Wirt, who formulated the current [prior to court ruling] interpretation” in 1823. From 1787 to 1823 it was interpreted as the court interpreted it, which includes actual founding fathers.

mpierce January 29, 2013 at 10:57 pm

U.S. Constitution:
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

So you think it is “bizarre constitutional balderdash of the highest order” to think that the President was given the authority “to fill up all Vacancies that may happen during the Recess of the Senate”?

David C January 30, 2013 at 12:49 am

Again from the article: “If intrasession appointments have been with us for 146 years, intersession appointments for vacancies that did not occur during intersessions have arguably been with us for more than 200 years. I say “arguably” because their application by George Washington and Thomas Jefferson was covert (i.e., they engaged in elaborate trickery to make it look as though the vacancies they filled occurred later than they actually did).”

You don’t get more founding father than Jefferson and Washington. The interpretation of the clause, as related by various legal minds over the years (http://fpc.state.gov/documents/organization/50801.pdf) is pretty standard: The President has the power to keep the Government functioning, but as a check on that power all appointments granted under this power are temporary. It’s classic checks and balances.

But this judge, going back and trying to, by virtue of his own special unique wisdom, attempts textualize a 220 year old document, ignoring precedent that goes back to the Monroe Administration, and could potentially invalidate thousands of appointments, and with them thousands more administrative decisions that hold the force of law, is broad judicial recklessness of the highest order. Because this judge demands it, are we to now strike from the record and from office every recess appointment made since the Wirt Interpretation, an Interpretation endorsed by multiple Courts of Appeals over the years and Attorneys General of both parties? Such an interpretation is an act of unbearable hubris and self regard. The word Conservative belongs nowhere near it.

mpierce January 30, 2013 at 1:58 am

You don’t get more founding father than Jefferson and Washington.

The only mention of Jefferson from the article:
“In 1792, the first Attorney General, Edmund Randolph, responded to an inquiry from Thomas Jefferson, then serving as Secretary of Foreign Affairs, as to whether a recess appointment could be made to the position of Chief Coiner of the Mint, a newly created position for which no nomination had been made before the Senate recessed. Positing whether the unfilled office was a vacancy “which has happened during the recess of the Senate,” Randolph concluded that the vacancy occurred on the day the office had been created, and thus could not be filled with a recess appointment.

Article on Washingtion:

“President Washington’s recess appointment of John Rutledge as Chief Justice generated significant controversy, ultimately factoring in his rejection by the Senate.”

Further info on Rutledge appointment: “Offered his services as a replacement for the soon-to-retire John Jay in June 1795, so President Washington offered him a temporary commission (Senate was in recess). The Senate convened in December and voted on the nomination, making Rutledge the first rejected Supreme Court nominee and the only “recess appointed” justice not to be subsequently confirmed by the Senate.”

Where is the evidence that Jefferson and Washington agreed with your interpretation and not the actual text?

DavidTC January 30, 2013 at 4:58 pm

Am I the only person who thinks it has become increasingly clear that the Senate’s ability to _never fill positions_ is quite obviously insane and not a reasonable interpretation of the constitution itself?

I.e., yes, the president is probably wrong here and abusing the constitution, as the Senate is not in recess, but that’s because the _Senate_ started it. (And, yes, I’m aware the Democrats started that.) Recess appointments used to provide an ultimate check on how obstructionist the Senate could be, and the ‘let’s always be in session forever’ is nonsense.

I’m sorry, but the Senate’s job is to _actually confirm_ someone. The fact that the Senate doesn’t like a government agency, like the ATF or the CFPB, does not mean that they can simply never approve anyone to head it.

The Senate is supposed to be a check on _laws_ and stupid personal choices by the president, fine. But the Senate is _not_ supposed to be able to unilaterally crippled parts of the executive that already exist. To remove part of the executive branch, either the House _and_ the President are supposed to have to agree to that, or 2/3 the Senate and House to override a veto. The Senate should not have a magical ‘We’re going to shut down this government agency by ourselves’ power.

I’m not sure how to fix this. I would suggest some sort of time limit on how long the Senate can refuse to confirm someone.

Actually, I think a saner solution would be simply let the president appoint whoever he wants _until_ the Senate holds a confirmation hearing, at which point they can remove the appointee if they wish. (Plus a requirement they hold any such hearing within six months.) Excluding perhaps Supreme Court Justices and any other lifetime appointments.

seenbetrdayz January 31, 2013 at 9:15 am

Didn’t the Senate just confirm Kerry to replace Clinton 97-3?

Here’s the snag:

We have a government that was intentionally designed to encourage stalemates.

When Congress overwhelmingly supports a president’s wishes to exercise unprecedented powers as in the PATRIOT act, or when Congress overwhelmingly supports indefinite detention of U.S. citizens whom the president happens to call ‘enemy combatants’, or pretty much whenever Congress abdicates any of its powers to the president, everyone thinks the system is working.

Yet people view stalemate to mean that government is broken and therefore opposition must be somehow bypassed. People throw around words like “obstructionism” as if they don’t know that our government was designed to be an obstructionist’s wet-dream. Maybe they don’t know that.

I think back to my college political science class and within the first few days it was established that our government isn’t designed to be ‘efficient’ by any means.

DavidTC January 31, 2013 at 12:03 pm

Yet people view stalemate to mean that government is broken and therefore opposition must be somehow bypassed. People throw around words like “obstructionism” as if they don’t know that our government was designed to be an obstructionist’s wet-dream. Maybe they don’t know that.

Uh, no. That was my point. The Senate is supposed to slow down _legislation_. And it is supposed to be a check against the president appointing someone unqualified to a position. *Those* are the things it’s designed to be a check on..

What it is _not_ supposed to do is to sit on nominations forever, like the dozens of Federal judges it never bother to bring forward for a vote, which are so uncontroversial that when they _are_ brought forward they are confirmed with more than 80% approval.

Here’s a fun list: Catherine Eagles, Kimberly J. Mueller,John A. Gibney Jr., James K. Bredar, Susan Richard Nelson, Denise Jefferson Casper, Ellen Lipton Hollander, Edmond Chang, Leslie E. Kobayashi, Carlton W. Reeves. All of them nominated before May 2010, finally confirmed in December 2010 (By the Senate on the way out the door.) Were they controversial? Probably not, considering they all were confirmed by unanimous consent. So what took seven months? Who knows. And I just picked those names out in two minutes of looking.

Before you go ‘Well, the Senate was busy with more important things’, please notice during that exact time period, we had a _crippling shortage of Federal judges_: http://election2010.illumen.org/latest-news/federal-judge-ranks-remain-thin-in-connecticut (And what the hell was the Senate doing during that time, anyway?)

But that’s not all the Senate has decided not to do. They have also decided to never fill positions at the top of Federal agencies they don’t like. Hence the AFT being head-less for _six years_.

Are you actually asserting that the Senate’s ‘obstructionism’ is supposed to reach to being able to cripple Federal agencies that _duly exist and were created by the passage of legislation_? That the Senate is supposed to have the power to stop _all_ aspects of the Federal government, including the _judiciary_ and including parts of the executive branch _it itself already passed and voted on_?

Dave Bearse January 31, 2013 at 1:48 am

How quaint. Johnny “all nominees deserve and up or down vote” Isakson, who has had a hold on multiple federal judicial nominees for years, is weighing in on the importance of Congressional confirmation of appointments.

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