Court pulls plug on recess ploy
American presidents are powerful, but they are not all-powerful.
No one should have been surprised last week when a federal appeals court unanimously ruled that recess appointments made by President Obama when the U.S. Senate was not in recess are null and void.
The court ruling, which Obama is expected to ask the U.S. Supreme Court to review, strikes down appointments to the National Labor Relations Board and, as a result, renders decisions made by the NLRB under its wrongly appointed leaders illegitimate. It also creates the possibility that other Obama recess appointees will fall prey to similar legal challenges.
Obama made the disputed appointments after he and Republican members of the Senate could not reach agreement on his NLRB appointees.
Presidents are allowed to make recess appointments when the Senate actually is in recess.
But when Senate Democrats, including then-Sen. Barack Obama, were angered by recess appointments made by former President Bush, they decided not ever to go into recess, even when members of the Senate left town. Instead, the Senate held brief pro forma sessions, thus preventing Bush from acting in senators' absence.
Bush respected the Senate practice, which was continued when Obama became president. But Obama, insisting he had the authority to declare when the Senate was in session, did not, declaring the Senate to be out of session when he made his NLRB appointments.
Now a federal appeals court has struck down Obama's ambitious effort to expand his appointments power.
"Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers," Justice David Sentelle wrote for the court.
The U.S. Constitution requires that presidents make appointments with the advice and consent of the Senate. Obama might not like that, but he will have to learn he can't assert authority he doesn't have to evade Senate review.