Obama Overstepped Recess Appointment Power, D.C. Circuit Rules

     (CN) – President Barack Obama made unconstitutional labor board appointments to during an intrasession adjournment of the Senate, the D.C. Circuit ruled Friday.
     Noel Canning, a bottler of Pepsi products, sought appellate review of an National Labor Relations Board (NLRB) decision that found the company had improperly refused to sign a collective bargaining agreement.
     Though the D.C. Circuit found that evidence supported the board’s decision, it vacated it nevertheless because the board did not have a quorum to rule.
     The NLRB consists of five members, and must have a quorum of three to issue a ruling. When the board ruled against Noel Canning, two members had been confirmed by the Senate in 2010, and three were appointed by President Obama on January 4, 2010, in recess appointments.
     “At the time of the president’s purported recess appointments of the three board members, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012,” Judge David Sentelle wrote for a three-judge panel.
     The recess appointments clause of the U.S. Constitution is limited to intersession recesses, not to intrasession adjournments, the court found.
     “We will not do violence to the Constitution by ignoring the Framers’ choice of words,” the 47-page opinion states.
     Noting that the new decision directly conflicts with Evans v. Stephens, a 2004 decision from the 11th Circuit, Sentelle said, respectfully, that the court found Evans “unconvincing.”
     “The Constitution uses ‘adjournment’ to refer generally to legislative breaks,” Sentelle wrote. “It uses ‘the recess’ differently and then incorporates the definite article. Thus, the Eleventh Circuit’s interpretation of ‘adjournment’ fails to distinguish between ‘adjournment’ and ‘recess,’ rendering the latter superfluous and ignoring the Framers’ specific choice of words.”
     Sentelle highlighted the infrequency of such appointments.
     “It is well established that for at least 80 years after the ratification of the Constitution, no President attempted such an appointment, and for decades thereafter, such appointments were exceedingly rare,” he wrote.
     “We conclude that the infrequency of intrasession recess appointments during the first 150 years of the republic ‘suggests an assumed absence of [the] power’ to make such appointments,” he added.
     Sentelle expanded upon this point later.
     “The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments,” he wrote. “Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”
     The court dismissed NLRB concerns that restricting recess appointments power may produce lengthy position vacancies and raise issues of national security.
     “If some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands,” Sentelle wrote. “As the Supreme Court observed in INS v. Chadha, ‘the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.'”
     If the ruling is upheld, it would invalidate every decision issued by the NLRB since the recess appointments. It would also leave the NLRB with only one validly appointed member, Chairman Mark Pearce.

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