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Court Rules Recess National Labor Relations Board Appointments Unconstitutional

January 25, 2013 at 12:00 AM EDT
A federal appeals court ruled President Obama's appointments to the National Labor Relations Board made during a congressional recess were unconstitutional. Hari Sreenivasan talks to Steven Greenhouse of The New York Times for more on how the ruling could weaken presidential power to make recess appointments going forward.

HARI SREENIVASAN: A federal appeals court rejected several recess appointments made by President Obama last year, saying the moves were unconstitutional.

The president appointed three people to the National Labor Relations Board last January. The president argued he was justified in doing so because the Senate was away for a 20-day break.

But Republicans and business groups said the Senate was still technically in session, if only for a few minutes every few days. The panel of three judges all appointed by Republican presidents said the president had done an inappropriate end run around the Senate.

But White House spokesman Jay Carney took issue with the ruling.

JAY CARNEY, White House Spokesman: The decision is novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations. So we respectfully, but strongly disagree with the rulings.

There have been, according to the Congressional Research Service, something like 280-plus intrasession recess appointments by, again, Democratic and Republican administrations dating back to 1867.

HARI SREENIVASAN: If the decision stands, it could invalidate hundreds of decisions made by the Labor Board. Moreover, the body wouldn’t have enough members to issue decisions, effectively shutting it down.

The ruling also could spell trouble for Richard Cordray, the head of the Consumer Financial Protection Board. He wasn’t part of this legal case, but he was appointed in the same manner on the same day.

For more on all this, we turn to Steven Greenhouse of The New York Times.

Thanks for joining us.

STEVEN GREENHOUSE, The New York Times: Nice to be here, Hari.

HARI SREENIVASAN: So, Steven, just back us up a little bit. What are some of these decisions? Why are the decisions from the National Labor Relations Board so consequential?

STEVEN GREENHOUSE: Employers and unions see the National Labor Relations Board as extremely important because there are often fights between the two about whether the union broke the law during a strike, whether the employer broke the law during a unionization drive.

And now the Labor Board has really gotten very involved in setting rules for employers on social media, when can employers tell their employees what they can do in social media and when they can’t.

And basically the effect of today’s ruling would nullify a lot of what the NLRB has done over the past year, that is, if the Supreme Court upholds it.

HARI SREENIVASAN: So what were the problems that the judges in the district court have?

STEVEN GREENHOUSE: The judges found — the judges said that the recess — these three recess appointments by President Obama last January were illegal.

The president said that the Senate was actually out for a break and that he was allowed to make these recess appointments.

The Senate said — the Republicans in the Senate said it wasn’t a real break, that they were continuing to have pro forma sessions and they maintained it was illegal for the president to make these appointments.

And today this three-judge panel ruled that the president’s recess appointments during intrasessions were illegal. The court really said today that the president essentially can only make recess appointments once every two years, between each congressional sessions, between each congressional session, you know, after a two-year congressional session ends and right before the next one begins.

So this would greatly weaken a president’s recess appointment powers.

HARI SREENIVASAN: Now, as Jay Carney was mentioning earlier in that sound bite, he was saying that this has been practice and precedent for a long time.

So is the likelihood that this particular ruling could have an effect on all sorts of presidential appointments going forward?

STEVEN GREENHOUSE: Absolutely. Some people pointed out that many federal judges are sitting on the bench now thanks to their recess appointments. And as a result of today’s ruling by this three-judge panel of the federal appeals court in the District of Columbia, those judges’ appointments could be nullified.

And there are prisoners sitting in prison nowadays thinking, wait, this is good news. Maybe my conviction, maybe my sentencing can be overturned because the judge who ordered my sentence was a recess appointment.

HARI SREENIVASAN: So, considering the magnitude of all this, the Supreme Court likely to take it up?

STEVEN GREENHOUSE: I think so, Hari. It’s not absolutely clear, but because this decision has so much import and because it’s — the same question is being heard now by several different circuit courts and thus there is a likelihood, a good chance that there might be conflict between the circuits, I think it points very strongly to the Supreme Court hearing this case some day.

And, meanwhile, the Labor Board might really be in limbo for a year or two or three until the Supreme Court issues a decision.

HARI SREENIVASAN: So let’s talk for a second about Richard Cordray. He was confirmed in the same manner on the same day as these members in the National Labor Relations Board. Is there a likelihood that he is going to be affected by this as well?

STEVEN GREENHOUSE: Yes and no. It’s unclear.

So, yesterday, President Obama renominated Mr. Cordray for a full term. And when he did that two years ago, originally, Congress basically signaled, the Republicans in the Senate signaled, we are not going to confirm Mr. Cordray, so the president did this recess appointment. Now it’s unclear whether the Republicans are going to allow the confirmation of Cordray to go through.

And, you know, Obama might have to really try to twist the arms of Senate Republicans. But that’s not very easy. And he probably wouldn’t be able to do another recess appointment of Cordray because, according to this decision, it’s not the end of session for Congress.

HARI SREENIVASAN: So could this tie the administration down for a long time?

STEVEN GREENHOUSE: I think the effect of this decision is that it might really tie the hands of this president and perhaps a future president — presidents to make recess appointments, except that one window between Congresses.

And it really greatly increases the power of the Senate to, in ways block — you know, block appointments, to tell president that an unless you deliver up an appointee, a nominee of someone that we can digest that we really like, someone who is much more moderate, we’re not going to let this go through.

HARI SREENIVASAN: And we should mention that this isn’t happening in a vacuum. There are layers and layers of politics involved in all this as well, right?

STEVEN GREENHOUSE: There is tons of politics.

The Obama administration has been saying that we really need this power of recess appointments because over the past two, three, four, five years, Congress has gotten, the Republicans in Congress have gotten far more partisan. They have gotten much, much more aggressive about preventing confirmation of NLRB appointees and of judicial appointees.

And I’m sure that many in the Obama administration are really tremendously upset by this decision, because it really might seriously block their ability to name the people that they feel under the Constitution they have the right to nominate.

HARI SREENIVASAN: All right, Steven Greenhouse from The New York Times, thanks so much for joining us.

STEVEN GREENHOUSE: Nice to be here, Hari.