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article imageCourt says Obama's recess appointments to NLRB unconstitutional

By JohnThomas Didymus     Jan 26, 2013 in Politics
Washington - The Associated Press (AP) is reporting that a federal appeals court ruled Friday that President Obama violated the Constitution when he bypassed the Senate to make recess appointments to the National Labor Relations Board (NLRB) last year.
Analysts say if the court's "far-reaching" decision stands, it would severely curtail the president's executive powers to make recess appointments.
AP reports that Noel Canning, a Washington Bottling company brought the case challenging the Obama administration's recess appointments, saying they were not valid because the Senate was not in recess when the appointments were made.
The recess appointments followed the refusal of Senate Republicans to approve Obama's appointments to the NLRB. Obama, exercising executive powers to make recess appointments, confirmed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to the labor board on January 4, 2012 when Congress was supposed to be on an extended break. However, some GOP lawmakers held "pro-forma" sessions, some reportedly lasting less than a minute, to prevent Obama from making recess appointments.
Flynn, a Republican, stepped down from the board last year, while Block and Griffin, both Democrats, remained.
The Obama administration claims that the appointments were made as provided by the Constitution, while the Senate was on a 20-day recess. Senate Republicans countered, arguing that the Senate held "pro-forma" sessions and therefore could be said, technically, to have stayed in session.
AP reports that the three-judge panel rejected the Justice Department's argument that the president could decide to make recess appointments when he adjudges that the Senate was not available to perform and its functions.
Chief Judge David Sentelle, a conservative judge appointed by President Ronald Reagan, wrote in the ruling: "Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers."
AP notes that the decision of the US Court of Appeals for the D.C. Circuit is a major victory for Senate Republicans and businesses opposed to the NLRB which facilitates union's ability to organize.
AP notes that if the latest decision stands, it would mean that the five-member labor board would be left with only one valid member, and thus, invalidate more than 600 board decisions in 2012, because the board can issue valid decisions only with three siting members.
The court did not accept the White House's argument that the "pro forma sessions" were not valid sessions. The court was of the opinion that the Constitution allows the president to make recess appointments only during breaks between yearly sessions of Congress and not in breaks during a session when lawmakers are briefly away.
Sentelle's opinion was supported by Judge Thomas Griffith, appointed to the court by President George W. Bush, and Karen LeCraft Henderson, appointed by President George H.W. Bush.
Senator Orrin Hatch (R-Utah), said: "With this ruling, the D.C. Circuit has soundly rejected the Obama administration's flimsy interpretation of the law, and (it) will go a long way toward restoring the constitutional separation of powers."
GOP House Speaker John Boehner hailed the ruling as "a victory for accountability in government."
While Republicans called for the board to resign, White House press secretary Jay Carney said in a statement that the Obama administration disagrees with the decision. He said that for the NLRB, it would be business as usual in spite of the court decision.
AP reports Carney said: "The decision is novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations." He said that going by the court's decision, 285 recess appointments made by US presidents between 1867 and 2004 would be invalid.
The Justice Department hinted that it would ask the Supreme Court to quash the decision.
Carl Tobian, a constitutional law professor at Virginia's University of Richmond, said: "I think this is a very important decision about the separation of powers. The court's reading has limited the president's ability to counter the obstruction of appointments by a minority in the Senate that has been pretty egregious in the Obama administration."
AP points out that the ruling also raises questions about the legitimacy of Obama's recess appointment of Richard Cordray to the Consumer Financial Protection.
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