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Court ruling on Obama appointments could affect labor board's decisions

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. The Associated Press

Says he violated Constitution by bypassing Senate.

Saturday, January 26, 2013 - 10:23 am

WASHINGTON – President Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board, a federal appeals court ruled Friday in a far-reaching decision that could severely limit a chief executive's powers to make recess appointments.

The court's decision marked a victory for Republicans and business groups critical of the agency. If it stands, it could invalidate hundreds of board decisions over the past year, including some that make it easier for unions to organize.

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that contrary to the administration's claim, the Senate was not in recess at the time Obama filled the vacancies on Jan. 4, 2012.

It also held that presidents have the authority to bypass the Senate in filling vacancies only when they occur during a recess, which it said occurs only between the end of the first year of a two-year Congress and when lawmakers convene for the second year.

White House press secretary Jay Carney said the administration strongly disagrees with the decision and that the NLRB would continue to conduct business as usual, despite calls by some Republicans for the board members to resign.

“The decision is novel and unprecedented,” Carney said. “It contradicts 150 years of practice by Democratic and Republican administrations.”

Under the court's decision, 285 recess appointments made by presidents between 1867 and 2004 would be invalid.

The Justice Department hinted that the administration would ask the Supreme Court to overturn the decision, which was rendered by three conservative judges appointed by Republican presidents.

“We disagree with the court's ruling and believe that the president's recess appointments are constitutionally sound,” the statement said.

The court acknowledged that the ruling conflicts with what some other federal appeals courts have held about when recess appointments are valid, which only added to the likelihood of an appeal to the high court.

The ruling also threw into question the legitimacy of Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, made on the same date, has been challenged in a separate case.

Carney insisted the court's ruling affects only a single case before the labor board and would have no bearing on Cordray's appointment.

Obama on Thursday renominated Cordray, a former Ohio attorney general, for the job.

Obama made the recess appointments after Senate Republicans blocked his choices for an agency they contended was biased in favor of unions.

Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.

But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for so-called pro forma sessions.

GOP lawmakers used the tactic – as Democrats had done in the past – specifically to prevent the president from using his recess power to install members to the labor board and the consumer board. They also vigorously opposed Cordray's nomination.

The White House argued that the pro forma sessions – some lasting less than a minute – were a sham.

The three-judge panel flatly rejected arguments from the Justice Department's Office of Legal Counsel, which claimed that the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.

“Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers,” Chief Judge David Sentelle wrote in the 46-page ruling.

He was appointed by President Ronald Reagan.

The court ruled that during a pro forma session Jan. 3, 2012, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.

GOP House Speaker John Boehner welcomed the ruling as “a victory for accountability in government.”

If the ruling stands, it would invalidate more than 600 board decisions issued over the past year. It also would leave the five-member labor board with just one validly appointed member. The board is allowed to issue decisions only when it has at least three sitting members.

Obama used the recess appointment to install Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats; Flynn is a Republican. Flynn stepped down from the board last year.