Judicial overreach to redefine presidential power

By Andrew Blotky
January 30, 2013

The first months of President Barack Obama’s second term promise to be full of big political fights on issues ranging from comprehensive immigration reform to the problem of gun violence to addressing America’s fiscal woes. Last week’s decision on recess appointments by three Republican-appointed judges on the D.C. Circuit Court of Appeals, however, proves there’s another battle worth waging: over the confirmation of judges to that court.

In invalidating Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau, the three-judge panel issued a troubling decision. And one that should spark a response. For it shows us, yet again, that it matters who sits on our courts.

First, this decision flies in the face of 150 years of practice by presidents of both parties. It represents the judicial overreach that Republican politicians usually decry. There were a total of 260 intra-session recess appointments made between 1867 and 2000, according to the nonpartisan Congressional Research Service. President George W. Bush made 141 intra-session recess appointments, and Obama has now made a total of 26.

The court’s additional ruling that a vacancy must arise during a recess for a president to make a recess appointment is also contrary to 190 years of precedent – as another federal appeals court ruled in 2004.

The judges went well beyond the question they were asked to resolve, issuing a ruling that was far more sweeping than necessary, or expected. The court essentially eliminated the president’s constitutionally mandated power to make recess appointments. Yet is is ever more difficult to move nominees – even consensus nominees – through the Senate confirmation process.

Second, this decision is another example of conservatives putting ideology and politics above the rule of law and the Constitution. Senate Republicans are illegitimately trying to shut down two government agencies they disagree with by preventing simple up-or-down votes on nominees. That GOP obstruction led to the need for the recess appointments in the first place.

Indeed, the recess appointment power is part of the constitutional checks and balances that prevent the minority party from keeping the government from functioning while it wages an ideological battle. Unfortunately, an ideological court has now weakened those checks and balances by taking the recess power away.

Third, last week’s decision again displays powerful conservatives favoring corporate interests over people. The court’s ruling was part of a Pepsi-Cola Co. lawsuit that challenged an NLRB decision against the company in a labor dispute. The corporation persuaded the judges that the three appointments to the five-member board were invalid recess appointments, and therefore the board lacked the quorum required to take any action.

Now several appointments – and worse, more than 300 policy decisions by the labor board – could be invalidated. Corporate interests again triumph over U.S. workers.

The same Republican obstruction of these agency nominees – a far greater degree of opposition interference than under any previous president – has led to unconscionably long vacancies on the D.C. Circuit Court. Republicans seem to prefer political ideology and inaction over effective, efficient government.

There are now three vacancies on the 11-seat D.C. Circuit, with one more expected later this winter. Two seats have been open over the entire four years of Obama’s first term. The D.C. Circuit is important because the judges decide cases of broad import to all Americans, from labor and employment issues to national security. Most important, in an era of hyper-partisanship, it rules on the proper balance of powers between branches of the government.

Progressives and conservatives agree that president has nominated two people who are highly qualified, non-ideological lawyers with strong credentials and professional experience to serve on the D.C. Circuit – Caitlin Halligan and Sri Srinivasan. Republicans blocked a Senate vote on Halligan two years ago, and the president has re-nominated her. Senate Republicans are now seeking to stall and delay Srinivasan’s Senate confirmation hearings.

Last week’s decision should serve as a wake-up call to anyone who cares about how our government works. Or doesn’t work. It raises the stakes in the fight over the power of the D.C. Circuit. This is a fight progressives need to have – and win.

It’s a battle for effective government and fairness over ideology.


PHOTO: President Barack Obama (R) stands next to Richard Cordray after renominating him as a recess appointment to lead the Consumer Financial Protection Bureau in Washington, January 24, 2013. Senate Republicans resisted the creation of the bureau and did not want to confirm its director. REUTERS/Larry Downing






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