A federal appeals court panel issued a ruling that President Barack Obama violated the Constitution when he made recess appointments last year. The decision will not end the ability of the president to bypass the Senate when filling vacancies in the administration, according to The Associated Press.
The panel, which consisted of three judges from the U.S. Court of Appeals for the D.C. Circuit, ruled that Obama did not have power to name three recess appointments in 2012 to the National Labor Relations Board. The reason he did not have the power was because the Senate actually was in session, not recess, when he did made the appointments. Should the ruling stand, it could make hundreds of board appointments invalid.
The president is only allowed to fill vacancies using the recess appointment when the Senate is officially recessed, which is the break in between Congress sessions, according to the court. The recess appointment of Richard Cordray is being questioned as well. Cordray was appointed as the head of the Consumer Financial Protection Bureau.
The White House did not comment on the ruling, but is expected to appeal the decision of the court.
“With this ruling, the D.C. Circuit has soundly rejected the Obama administration’s flimsy interpretation of the law, and will go a long way toward restoring the constitutional separation of powers,” said Sen. Orrin Hatch, R-Utah.
The recess appointments were made on January 4, 2012. Obama claimed that he did not make a mistake because the Senate was gone for the holidays during a 20-day recess. When Congress is recessed, the Senate does not have to approve appointments, as permitted by the Constitution.
Lawmakers from the GOP claimed that during that period, the Senate was still in session because it was holding ‘pro forma’ sessions. All three of the judges on the panel were appointed by Republican presidents. The panel noted that during a pro forma session on January 3, the Senate convened its second session of the 112th Congress.
“Either the Senate is in session, or it is in recess,” Chief Judge David Sentelle wrote in the 46-page ruling. “If it has broken for three days within an ongoing session, it is not in “the Recess” described in the Constitution.”
Sentelle wrote that taking an evening break or a weekend break does not count as not being in session. Otherwise, Sentelle wrote, “the president could make appointments any time the Senate so much as broke for lunch.”
“Allowing the president to define the scope of his own appointment power would eviscerate the Constitution’s separation of powers,” Sentelle wrote.
Also issuing the ruling was Judge Thomas Griffith, appointed to the court by President George W. Bush, and Karen LeCraft Henderson, who was appointed by President George H.W. Bush.