Obama to Appeal Ruling Curbing Recess Appointments

[alp227]

Source: NYT

The Obama administration has decided that it will appeal to the Supreme Court a sweeping ruling by an appeals court in January that President Obama violated the Constitution when he bypassed the Senate in making three recess appointments to the National Labor Relations Board last year.

While the dispute over the appointments grew out of a narrow and novel legal question — whether brief “pro forma” sessions by the Senate could prevent the president from making recess appointments during a lengthy winter break by lawmakers — the appeals court blew past that issue and called into question nearly two centuries of recess appointments by presidents of both parties.

The three-judge panel of the appeals court in Washington ruled that presidents may bypass the confirmation process only during the sort of recess that occurs between formal sessions of Congress, rather than other breaks throughout the year. The gaps between formal sessions generally arise just once a year and sometimes — as in 2012, when the Senate had not formally adjourned before the next session began — are skipped entirely.

Two of the three judges on the panel also ruled that presidents may fill only vacancies that arise during that same recess. Together, the reasoning would virtually eliminate the recess appointment power for future presidents at a time when it has become increasingly difficult to obtain up-or-down Senate votes on nominees.

Read more: http://www.nytimes.com/2013/03/13/us/politics/obama-to-appeal-ruling-curbing-recess-appointments.html

[Lasher]

1. I was hoping to see this.

This ruling was clearly outside the purview of the appeals court.

[24601]

5. How do you figure it's outside the purview of the Appeals Court for the DC Circuit when it

was appealed from a District Court within that circuit?

You may disagree with their decision, but the purview of Circuit Courts of Appeal is to hear the cases from their circuit. Unlike the USSC, circuit courts don't get to decline to hear appeals.

Two other Circuits have heard recess appointment cases, so why would the DC Circuit be any different?

In any case, if the USSC declines the case, the the circuit decision stands. If they grant cert, the USSC decision becomes binding for all circuits.

Here's what the NYT reported:

"Paradoxically, in the fairly recent past, Democrats have argued against the validity of appointments in the middle of a session, and Republicans have supported them."

"In 1993, after President George Bush made a recess appointment just before leaving office, the Senate legal counsel developed a friend-of-the-court brief for a legal challenge to the appointment, arguing that it was invalid because it did not come between sessions."

"And in 2004, after President George W. Bush, during a weeklong break in the midst of a Senate session, made a recess appointment of William H. Pryor Jr. to be an appeals court judge, Senator Edward M. Kennedy, Democrat of Massachusetts, filed briefs in several court cases challenging the appointment. Mr. Kennedy also sent letters to each of the judge’s fellow jurists warning them that any ruling they might make with him on the bench could be invalid."

http://www.nytimes.com/2013/03/13/us/politics/obama-to-appeal-ruling-curbing-recess-appointments.html

In any case, we likely will have settled law and regardless of the outcome, I favor everyone knowing the rules.

[John2]

2. Would the Court's ruling

also affect other judges by a past Administration that made appointments this way? I think the present Court on the D.C. circuit is playing politics. Many of them and probably some of them might have been appointed the same way by George W. Bush. Has anyone checked on this?

[Archae]

3. One of those "judges" is David Sentelle...

The same right-wing nutcase that let the "Clinton sex investigation" go forward.

[Coolest Ranger]

4. They really hate this President