January 25, 2013

Court Rebukes Obama’s Overreach

Statement of Committee for Justice President Curt Levey on today’s DC Circuit decision striking down President Obama’s recess appointments:

We commend the U.S. Court of Appeals for the DC Circuit for acting today to protect the Constitution’s separation of powers.
In a landmark decision with broad implications, the DC Circuit struck down President Obama’s controversial December 2011 recess appointments, and the executive actions that flowed from them, as an unconstitutional violation of the separation of powers.  The court ruled that Obama’s extraordinarily broad interpretation of the constitutional provision for recess appointments – allowing him to make recess appointments when the Senate has not declared a recess –“would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the [Constitution’s] Appointments Clause.”
Today’s decision in Noel Canning v. National Labor Relations Board vacated the February 2012 NLRB order challenged by the plaintiff.  Without Obama’s three unconstitutional recess appointments to the NLRB, the Board lacked the quorum necessary to make the order valid. However, the broad reasoning of the DC Circuit’s decision also serves to invalidate 1) all NLRB orders issued since the December 2011 recess appointments; 2) the simultaneous recess appointment of Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB); and 3) Cordray’s rulemaking, including the controversial CFPB mortgage rules announced earlier this month.
Courts are reluctant to strike down an action by one of the three branches of government as a violation of the separation of powers, making decisions like today’s rare.  The fact that the powerful DC Circuit was willing to act here – despite the decision’s broad implications – bodes well for current and future legal challenges to other Obama Administration actions which stretch the power of the executive branch. Examples include Obama’s broad use of czars, his expansive use of executive orders – on immigration and welfare reform for example – and overreach by his executive agencies, including the EPA’s actions on climate change.
That the DC Circuit felt the need to step in here underscores the danger of a “living Constitution,” under which the Constitution’s narrow emergency exception to the requirement for Senate confirmation of appointees was gradually expanded. A constitutional clause that allows the President “to fill up all Vacancies that may happen during the Recess of the Senate” (emphasis added) grew to include vacancies that happen before the recess and any adjournment of the Senate, not just the annual inter-session recess contemplated in the exception. The effect was to allow presidents to use recess appointments, not for emergencies, but as a way to bypass the Senate and the separation of powers for controversial nominations
When Obama tried to expand the recess exception beyond credulity, declaring that he rather than the Senate will determine when the Senate is in recess, then doing so while the Senate was actually passing legislation – the December 2011 extension to the payroll tax – the DC Circuit was forced to act to protect the Constitution’s separation of powers.  We commend the DC Circuit for its decision today restoring the original meaning and intent of the Appointments Clause. 
Assuming the Obama Administration appeals today’s ruling, this case is likely to wind up in the U.S. Supreme Court.


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