Federal Court Unanimously Rules Obama Appointments Violated U.S. Constitution: Obama Ignores!

The court’s decision marked a victory for Republicans and business groups
critical of the agency. If it stands, it could invalidate hundreds of board
decisions over the past year, including some that make it easier for unions to
organize.

The three-judge panel of the U.S.
Court of Appeals for the D.C. Circuit said that contrary to the
administration’s claim, the Senate
was not in recess at the time Obama filled the vacancies on
Jan. 4, 2012. Amicus Brief Posted Here

It also held that presidents have the authority to bypass the Senate in filling
vacancies only
when they occur during a recess, which it said occurs only between the end
of the first year of a two-year Congress and when lawmakers convene for the
second year.

White House press secretary Jay Carney said the administration strongly disagrees with the decision and
that the NLRB would continue to conduct business as usual, despite calls by
some Republicans for the board members to resign.
“The decision is novel and unprecedented,” Carney said. “It contradicts 150
years of practice by Democratic and Republican administrations.”

Under the court’s decision, 285 recess appointments made by presidents between 1867
and 2004 would be invalid.

The ruling also threw into question the legitimacy of Obama’s recess
appointment of Richard Cordray to head the Consumer Financial Protection
Bureau. Cordray’s appointment, made on the same date, has been challenged in a separate case.

Carney insisted the court’s ruling affects only a single case before the labor
board and would have no bearing on Cordray’s appointment. Obama on Thursday
renominated Cordray for the job.

Obama made the recess appointments after Senate Republicans blocked his choices
for an agency they contended was biased in favor of unions. Obama claims he
acted properly because the Senate was away for the holidays on a 20-day
“recess”. The Constitution allows for such appointments without Senate approval
when Congress is in “recess”.

GOP lawmakers used the tactic — as Democrats had done in the past —
specifically to prevent the president from using his recess power to install
members to the labor board and the consumer board. They had also vigorously
opposed the nomination of Cordray. The White House argued that the pro forma
sessions — some lasting less than a minute — were a sham.

The three-judge panel
flatly rejected arguments from the Justice Department’s Office
of Legal Counsel, which claimed that the president has discretion to decide
that the Senate is unavailable to perform its advice and consent function.

Sentelle’s opinion was joined by Judge Thomas Griffith, appointed to the court
by President George W. Bush, and Karen LeCraft Henderson, who was appointed by President
George H.W. Bush.

If the ruling stands, it would invalidate more than 600 board decisions issued
over the past year. It also would leave the five-member labor board with just
one validly appointed member, effectively shutting it down. The board is
allowed to issue decisions only when it has at least three sitting members.

Obama used the recess appointment to install Deputy Labor Secretary Sharon
Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill
vacancies on the labor board, giving it a full contingent for the first time in
more than a year. Block and Griffin are Democrats, while Flynn is a Republican.
Flynn stepped down from
the board last year.

All three vacancies on the labor board had been open for months before Obama
acted to fill them.