Obama Hammered Again on Recess Appointments

     (CN) – President Barack Obama’s unconstitutional recess appointments require the invalidation of two decisions from the National Labor Relations Board, the 4th Circuit ruled.
     In January 2012, Obama made three NLRB appointments during an intrasession break when the Senate was adjourned but conducting brief, pro-forma sessions every three days. Both parties have used the tactic since the Reagan administration to prevent recess appointments.
     Obama argued that the Senate had been in a true recess at the time of his appointments since there were not enough legislators present to conduct business.
     The five-member labor board must have a quorum of three to issue a ruling. The NLRB currently has three appointed members, two of which were appointed during the disputed January 2012 break.
     But in January this year, the D.C. Circuit found the appointments unconstitutional, and a divided three-judge panel of the 4th Circuit concurred last week in its review of two challenges to NLRB decisions brought by employers Enterprise Leasing and Huntington Ingalls.
     The crux of the issue centers on whether the term “recess” refers to intrasession breaks as well as intersession breaks.
     “The historical record supports the intersession definition of the term ‘the Recess,'” especially given that no intrasession appointment was ever made before 1921,” Judge Clyde Hamilton wrote for the majority.
     “‘The Recess’ occurs during an intersession break – the period of time between an adjournment sine die and the start of the Senate’s next session,” Hamilton added. “Such an interpretation adheres to the plain language of the Appointments and Recess Appointments Clauses, and is consistent with the structure of the Constitution, the history behind the enactment of these clauses, and the recess appointment practice of at least the first 132 years of our nation.”
     Hamilton, and Judge Allyson Duncan who concurred with his opinion, were appointed by George H.W. Bush and George W. Bush respectively.
     Obama-appointee Judge Albert Diaz dissented, finding no minimum length to term an intrasession break as a recess. Allowing the Senate to block recess appointments, yet be unavailable for legislative business, is contrary to the Framers’ intent, Diaz said.
     “I discern a meaning of ‘the Recess’ that I believe would find favor with the Framers: the Senate is in ‘the Recess’ when it is not available to provide advice and consent on nominations,” he wrote. “Particularly, if the Senate is not engaged in its regular course of business, is unavailable to receive messages from the President, or cannot meet to consider a nominee for a position, it is in ‘the Recess.'”
     Hamilton criticized Diaz’s interpretation of the Constitution for “placing all of the face cards in the hands of the president,” and “destroy[ing] one of the central pillars undergirding the Appointments and Recess Appointments Clauses.”
     The Supreme Court has agreed to review the D.C. case challenging Obama’s recess appointments in its fall session.

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