A federal appeals court has ruled that President Obama’s so-called “recess” appointments are unconstitutional.  In a unanimous ruling by the District of Columbia’s U.S. Circuit Court of Appeals, the judges determined that the President abused his executive power in attempting to name three new members to the National Labor Relations Board (NLRB) on January 4, 2012.

The court’s decision has broad implications for the validity of the NLRB’s actions over the past year.  It also discredits the controversial appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB).  The President attempted to appoint Cordray and the NLRB members at the same time and in the same manner, claiming each was a “recess” appointment.  The reasons for striking down the NLRB appointments are instructive in Cordray’s case, which is under separate review. 

Checks and Balances

Like many of my Senate colleagues, I challenged President Obama’s massive power grab, joining an amicus brief defending the constitutional duty of the Senate to provide “advice and consent” on nominations to powerful agencies such as the NLRB and CFPB.  The Framers of our Constitution gave the legislative branch this exclusive responsibility as a way to check the excesses of the executive branch.  The only exception is when the Senate is in recess, in which case the Constitution gives the President the authority to “fill up all Vacancies that may happen.”  

The appellate court determined that the Senate was not in recess when President Obama made his appointments to the NLRB.  For the White House to contend otherwise threatens to set a dangerous new precedent for future administrations and tramples the government’s separation of powers.  

As the court noted in its ruling, the President’s ability “to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement.”  The President could, in effect, make appointments when the Senate recesses for lunch or whenever he views the chamber as being inactive.

Upholding the Constitution

In 2007, Senate Majority Leader Harry Reid (D-Nev.) used pro forma sessions to block recess nominations by President George W. Bush, calling these appointments “an end run around the Senate and Constitution.”  Regardless of who holds the presidency, the same rules should apply now.  The Constitution does not change based on which political party is in power. 

Even President Obama recognized the legitimacy of pro forma sessions.  He signed legislation that the Senate passed during the same series of pro forma sessions when the NLRB appointments were made.  The President cannot have it both ways.

‘Encroaching’ Power

A functioning democracy requires upholding the limits on the powers our Framers enshrined in the Constitution.  As James Madison wrote in essay No. 48 of The Federalist, “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

This is not the first time that President Obama has tried to expand his executive power to advance a political agenda.  The President’s orders and waivers – from education to immigration – have created a troubling pattern of overstepping the constitutional limits of his office.  The court ruling against his “recess” appointments is an important rejection of this overreach and comes at an appropriate time for the Constitution and the American people.