Court: Obama appointments are unconstitutional

3:56 PM, Jan 25, 2013   |    comments
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WASHINGTON (USA TODAY) - A federal appeals court said Friday that President Obama overstepped his authority with a series of recess appointments to the National Labor Relations Board.

The case may wind up in the Supreme Court and determine how far the president can go in appointing people whose nominations would otherwise be blocked by the Senate.

The result could affect the standing of other Obama recess appointees, such as the head of the president's new Consumer Financial Protection Bureau, Richard Cordray.

White House press secretary Jay Carney said the administration "respectfully but strongly" disagrees with the court's ruling, arguing that it ran counter to precedents dating back 150 years.

The Justice Department also criticized the court's decision. "We disagree with the court's ruling and believe that the President's recess appointments are constitutionally sound," a department spokesperson said.

Administration officials indicated they would appeal the decision, and predicted they would win similar cases pending before other judges.

"This is one case in one court," said Carney.

In legal briefs, Obama said his recess appointments were legal because the Senate was on vacation at the time. The president has authority to make temporary appointments without Senate approval if the Senate is not in session.

But Republican senators who joined in a lawsuit said the chamber stayed in a "pro forma" session during the time in question, denying Obama the right to make recess appointments – and the U.S. Court of Appeals for the D.C. Circuit agreed with them. In these "pro forma" sessions, a senator would gavel an empty chamber to order every few days and then recess again.

Sen. Orrin Hatch, R-Utah, said today's decision "will go a long way toward restoring the constitutional separation of powers," while Senate Minority Leader Mitch McConnell, R-Ky., said the decision "reaffirmed that the Constitution is not an inconvenience but the law of the land."

Senate Republicans had blocked Obama's appointees to the National Labor Relations Board, calling them too pro-union.

It's not known whether the Supreme Court will step into this White House-Congress dispute.

As it stands now, the decision invalidates hundreds of decisions made over the past year by the National Labor Relations Board.

Mark Mix, president of the National Right to Work Foundation, released a statement calling the court's decision "a victory for independent-minded workers."

On Jan. 4, 2012 – the same day he appointed Cordray – Obama appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on labor relations board – those are the appointments in question.

The Cordray appointment is still under challenge in a separate case pending before the appeals court.

C. Boyden Gray, a former White House counsel to President George H. W. Bush, said in a statement that one key takeaway from today's decision is that the president "has no power to declare when a recess exists" as he said Obama did with the appointment of Cordray and the NLRB board members.

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