Skip to comments.Obama's recess appointments might not hold up in court
Posted on 01/18/2012 2:41:56 PM PST by Qbert
Some legal experts, including those who have sided with President Obama on other constitutional issues, think there is a good chance the courts could overturn his recent recess appointments.
Legal experts said courts could invalidate Obamas appointments to the Consumer Financial Protection Bureau (CFPB) and National Labor Relations Board (NLRB) because there is scant precedent on the issue.
Its untested ground. If I were a judge, I could write out an opinion either way. Theres no clear precedent, said Charles Fried, a constitutional expert at Harvard Law School who served as solicitor general under former President Reagan.
The Justice Department has argued that the pro forma sessions the Senate has held since Dec. 17 do not constitute genuine sessions of work and that the upper chamber has been, for all practical purposes, on vacation.
But Fried, who has sided with the Obama administration on challenges to the constitutionality of healthcare reform, said courts might not be willing to judge what qualifies as working sessions of the Senate, especially considering how much time the chamber spends on quorum calls lately.
A court might very well say that we dont want to start saying something the Senate calls a session is not a real session because not a lot of senators are around, Fried said. One might say that this whole year is one which is not a real session.
Fried added that it is well-established that the president has power to make recess appointments, but it is not clear at all whether the two-day gap between pro forma sessions counts as a real recess.
Business groups can point to an amicus brief the late Sen. Edward Kennedy (D-Mass.) filed with the 11th U.S. Circuit Court of Appeals in 2004 challenging then-President George W. Bushs recess appointment of Judge William Pryor Jr. to that court.
Kennedy argued that a 10-day recess the Senate took for Presidents Day did not amount to a constitutionally valid recess that would allow Bush to make a recess court appointment.
Last week, three business groups the National Right to Work Foundation (NRWF), Coalition for a Democratic Workplace and the National Federation of Independent Business filed a legal action challenging Obamas recess appointments to the NLRB.
Legal experts said challenges filed in response to new regulations are likely to be more viable in court than Fridays motion from the NRWF, which challenges the appointments based on ongoing litigation against a previous regulatory action.
The U.S. Chamber of Commerce said it had no plans to sue immediately but would wait until the CFPB and the NLRB issued their first regulations with the new appointees in place.
Carl Tobias, a professor at the University of Richmond School of Law, said waiting until Cordray or the new NLRB appointees act would make for a much stronger case than the one they moved last week.
I dont think the substitution of new labor board members vitiates the earlier action, Tobias said. If theres fresh regulation adopted by Cordray as director, theres a plausible argument that he doesnt have the authority.
A spokesman for House Speaker John Boehner (R-Ohio) said the House is mulling whether to pursue legal action against Cordray and the other appointees.
Were examining our options, said Michael Steel.
Boehner said earlier this month that he expects courts to invalidate the presidents move.
This action goes beyond the presidents authority, and I expect the courts will find the appointment to be illegitimate, he said in a statement.
Richard Painter, a corporate law professor at the University of Minnesota who served in the White House Counsels Office under Bush, warned that if courts overturn the Cordray or NLRB appointments, the regulations they promulgated would be in legal jeopardy as well. He said the courts must rule quickly to avoid creating a regulatory snarl.
That would create a lot of problems, a real mess, he said. If a court is going to deal with this, they need to deal with it very quickly. They cant sit around and let this be litigated for five or six months. This needs to be dealt with.
Painter, who sided with Obama in saying that the Senate should not filibuster the presidents nominees, said this legal matter revolves around very technical questions of what is a genuine Senate session or recess.
The problem with the courts overruling the Senate on the definition of a session is that it could become a slippery slope made all the more steep by the little time the chamber spends in debate or holding votes even when all 100 members are in town.
If theyre not in session unless theyre doing something productive, then theyre usually out of session, Painter said.
Some legal experts, however, disagree with the slippery-slope argument.
I would say that shams and gimmicks often rely on misunderstandings of the law, said Victor K. Williams, a clinical assistant professor at the Catholic University of America School of Law who argues that pro forma sessions are sham sessions of Congress, a view shared by the administration.
He said most Americans who follow political wrangling over recess appointments know that such sessions are not intended to accomplish work.
The Justice Departments Office of Legal Counsel argued in a memo made public last week that pro forma sessions should not be recognized as working sessions of the Senate.
Not counting these short, ceremonial sessions, the Senate would be in recess from Dec. 17 to Jan. 23, easily long enough for the president to justify making recess appointments.
Republicans insisted on holding nine pro forma sessions during that period for the purpose of blocking recess appointments, and Democrats agreed to schedule them.
Virginia Seitz, assistant attorney general for the Office of Legal Counsel, argued that pro forma sessions held every third day do not render the Senate a functioning body that can provide advice and consent on the presidents nominees.
Although the Senate will have held pro forma sessions regularly from Jan. 3 to Jan. 23, in our judgment, those sessions do no interrupt the intra-session recess in a manner that would preclude the president from determining that the Senate remains unavailable throughout to receive communications from the president or participate as a body in making appointments, Seitz wrote in the Jan. 6 memo.
Seitz noted that pro forma sessions typically last only a few seconds and require the presence of only one senator.
Jonathan Adler, a law professor at Case Western Reserve University, said DOJs argument that pro forma sessions are not working sessions has come under scrutiny, noting that the two-month extension of the payroll-tax holiday was approved in pro forma session.
He said its kind of a hard argument that pro forma sessions count to fulfill the constitutional requirement that Congress convene on Jan. 3 of each year and for passing genuine legislation, but dont count for recesses.
Not to be too defensive of the Obama decision, but in his nine year old mind, he actually thought the Senate was out to recess, since it was about 12:30 p.m. /s
Can’t wait to start seeing the things this lout has done get reversed.
The Messiah actually believes he is the one. He is arrogant beyond the point of rationality.
His Keystone decision is derived from the same arrogance. He has passed the tipping point and is going to be crucified
If the courts rule FOR the admin, it will be for all intents and purposes, two branches ganging up on one... Whereas, the executive is now trying to tell when another branch is in recess, a ruling that way would establish that two branches can say when the third is in recess.
The Constitution says whatever 5 out of 9 Supreme Court Justices say it says.
Be afraid. Be very afraid.
Yes. From a dangerous president.
And when was the payroll tax cut bill passed .... Dec. 23?
And how much further would it then be for Obama to declare a troublesome Congress in recess until he said otherwise?
This is a red-herring argument.
The question is not whether a "session" is a valid session or not.
The question is whether it is a "recess" or not.
Let's look at the words of the Constitution.
Article I Section 5 Clause 4:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
The authority to call a recess is clearly given to both chambers of Congress. If both chambers do not agree, then Congress is not in recess.
But, more importantly...
Article II Section 2 Clause 3:
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.
Here, the use of the word "session" is meant to imply that the session lasts for a significant amount of time, perhaps a year. I think that common practice has been that there are two "sessions" of Congress between each bi-annual federal election, falling on annual boundaries.
By this definition, it is not the definition of "session" that is important, it is the definition of "recess" that becomes the issue.
If we are to take Obama's definition of a "session" to be when actual work is done, and a series of pro forma sessions is really a recess, then Article II Section 2 Clause 3 could be interpreted to mean that a "session" is the amount of time between recesses. Therefore, Congress could argue that a recess appointment will only last until the next recess of Congress, which they could call at any time.
I want this issue settled either way, because if it is illegal then obama has been thwarted, if is legal then when the next Republican President can appoint people without the same problem.
If a court allows the president to usurp the Senates’ constitutional power like this, the judge or judges in that court can kiss their ambitions of going to a higher court goodbye—they will never be confirmed.
Obama stooges like Reid who say “sure,tell the senate to go to hell, whatever you want boss” are almost a minority of one.
Taking away power from any politician is to make a revenge obsessed enemy for life.
"And when was the payroll tax cut bill passed .... Dec. 23?"
And there was this, too, I believe:
"If Congress is in recess and cannot fulfill its responsibility to advice and consent, as the President has suggested, how can Obama fulfill his obligation of submitting a certification to Congress?"
Much ado over nothing. Every president since the founding of the republic has made recess appointments, pretty much like clockwork during the school winter break. If we force the issue and prevent Obama from doing this, we will lose the ability to carry out recess appointments when the GOP regains the White House.
Well, I hope he is politically neutered later this year.
I agree with your take on it.
I read your post and then a thought popped in my head.
Perhaps he has determined he will lose. Having nothing to lose, he can pull out the stops and impose as much of his change as he can shove down our throats.
Who knows. You may be on to something there.
This is so extreme the courts will, most likely, find it unconstitutional.
However... Reid can save Obama by making a deal for the Dems to declare them unconstitutional in the Senate- AND in return the RINOs drop their fillibuster.
Resulting in these appointments passing.
This is what I foresee happening.
Everyone gets to posture on defending the Senate and constitution, and the Dems get what they want.
You know: what usually happens in the Senate...