You know, its’ funny….Republicans don’t mind about things like this when they’re in the White House but when a Democrat is in the White House and has to use the recess appointment to get around the Senate, its’ “Katie bar the door” time…quoting Think Progress:
A panel of Republican-appointed judges struck down President Obama’s appointment of three members to the National Labor Relations Board during the winter 2012 congressional recess in an expansive ruling that invalidates more than a century of presidential practice. The ruling by the U.S. Court of Appeals for the D.C. Circuit will now likely be appealed to the U.S. Supreme Court, but has the potential to also affect Obama’s concurrent appointment of Richard Cordray to lead the Consumer Financial Protection Bureau. It could also invalidate every ruling by the NLRB during the period between January 4, 2012 and today, as well as many actions by the CFPB during that period.
Let me explain the setup here….under the Constitution, the President has the right to appoint whomever he(or someday she) may choose to appoint to the Executive Branch and whomever they want to the Judiciary with the “advise & consent” of the Senate; should the Senate fail to do their constitutional duties in that regard, the President may, provided the Senate is “in recess”, make appointments to said positions, known as “recess appointments”.
In the above instance, recess appointments were made by the Obama Administration to the National Labor Relations Board(NLRB) in order to provide the agency with enough members to meet its’ quorum requirements in order to conduct business under federal law regarding labor issues. Republicans naturally complained that, because the House had not consented to adjourn when the Senate was in recess, the Senate was therefore still in session, thus invalidating the appointments in questions…which D.C. Circuit Judge David Sentelle, who authored the decision, apparently bought lock, stock and labor barrel.
Here’s the problem with the panel’s reasoning: by the logic of his decision, the prior administration’s appointments were equally invalid since some of them, especially the appointment of John Bolton back in the mid-2000’s to be U.S. Ambassador to the United Nations; indeed, the reason Senate Democrats kept the Senate virtually in session from 2007 to 2009 was to prevent such appointments from being done between sessions. In addition, the panel’s decision appears to, as TP points out, invalidate about 100 years worth of precedent on the subject at hand, which means not only is their decision illogical, it reeks of the basest sort of judicial activism that conservatives bitch-and-moan about all the time.
My guess on this is that the Supreme Court will eventually deal with this issue. Why? Simple: since the D.C. Circuit and the 11th Circuit have come down on opposite sides of the issue at hand, the Supreme Court, as court of final resort, will all but certainly deal with this issue.