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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Cry me a river… wooooahhh

Too bad, so sad.

Posted by jwab | Report as abusive

intra-session appointments mentioned in this article usually occur when Congress is, you know, actually not in session. The recess appointments by Obama do not meet this criteria.

The court’s decision does NOT fly into the face of 150 years of precedent. This article fails to note that prior to 1940, intra-session appointments were rare, and that even after that, they occurred only when congress was adjourned for extended periods of time.

If the court had said the President cannot make recess appointments AT ALL, yeah, that would be an overreach. But they didn’t. They simply said that congress actually has to be in recess. . .formally.. . .which has traditionally been the case when recess appointments have been made.

Posted by Yashmak | Report as abusive

Maybe the author mistakenly meant presidential overreach because that’s what Obama has been doing :)

Posted by js2012 | Report as abusive

Article II., Section ., Recess Appointments clause is one of the simplest, most direct and least open to interpretation clauses in the document. It reads:
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The key phrase is “Vacancies that may happen during the Recess of the Senate” and was put there when it could take months to gather a quorum from Recess. If an important position became vacant in that situation, a time-limited appointment power was enumerated to the President.
But the NLRB vacancies all existed during the full session prior to the “Presidentially deemed Recess” in question. If you want precedent, Harry Reid held proforma sessions for years to prevent G. W. Bush from making such appointments. And when the gavel opened a pro-forma session, George did not make appointments. When Reid declared the Senate in Recess, he did.
But precedent should not be used as an excuse. Dredd Scott shows us that. Because previous presidents have broken their inaugural oaths by making recess appointments when a Full Recess did not exist or when the vacancy did not happen during a Recess does not make it either Constitutional or legal to continue the malpractice.
This is a violation of his oath of office. He flaunts the Constitution almost daily in his ignoring of it. In my opinion, he should now become the first president impeached by the house and convicted by the senate.
But so long as we have spineless Republicans and Progressive Democrats, we will have a president who is the embodiment of Hugo Chavez.

Posted by ReadTheDocument | Report as abusive

The ends justify the means, isn’t that what we heard from the Romney campaign? The president is doing all he can to fight Republican obstructionism.

Posted by dreadzeppelin | Report as abusive

Yashmak – you’re completely misreading it. The court DID effectively say that all recess appointments are invalid. They could have ruled just these NLRB appointments and Cordray were invalid, because the Senate was technically not in recess, with one Senator gaveling in for a few seconds each day specifically to block appointments and doing no other business. While I think the courts should not allow such a transparently phony move, by the strict letter of the law they would be right.

But what they did instead was far, far beyond that, and beyond what was even at question in the case. They said that recess appointments can only happen for a position that BECOMES vacant during a recess (only an intersession recess), and can only be made DURING THAT SAME RECESS. I’d bet that that invalidates virtually every recess appointment, certainly all of the ones going back to the mid-1800′s. It unquestionably invalidates Bush’s recess appointments, such as John Bolton.

Now THAT’S judicial activism for you.

Posted by RobertHoward | Report as abusive

Anything that reigns in the power of the executive is a win for the American people and the constitutional republic.

Posted by Jameson4Lunch | Report as abusive

The Court was faithful to the Constitutional text – which plainly supports the opinion – and most intrasession recess appointments have been of relatively recent vintage.Moreover, the Constitution clearly contemplates that recess appointments would be the exception -not the rule, with entire agencies staffed with recess appointments. The President is required to appoint people who can obtain Senate confirmation. People certainly exist who could obtain swift confirmation to the NLRB. It is the President’s fault that he does not nominate such people and mis-uses the recess appointment vehicle to install people who could not obtain confirmation – a perversion of the process. It is true that the Court did not have to go that far and it is possible that the Supreme Court affirms on narrower grounds – but affirms nonetheless. The easiest affirmance would be that the Senate is the sole judge of when it is in recess – and another branch of government, the Executive, cannot simply declare it otherwise, which is what happened here. Otherwise, a President could say that he just spent 10 hours watching C-SPAN and did not see anything happening – and have license to make all appointments without Senate confirmation.

Posted by SayHey | Report as abusive

For all you legal scholars out there, “judicial overreach” has existed since Marbury v. Madison (1803). It seems when the Supreme Court plays ball with the rest of federal government, even if it’s rulings are highly questionnable, you say nothing. But when the Supreme Court starts “behaving badly” you begin to whine like little children. Get over it or do something about the excesses of the Supreme Court since 1803, which of course would mean throwing out most of the federal laws on the books now.

“Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of coequal branches, critics contend that the argument for judicial review must rely on a significant gloss on the Constitution’s terms. Despite such criticisms of Marbury v. Madison, judicial review has been accepted in the American legal community.”


Marbury v. Madison, 5 U.S. 137 (1803), was a landmark United States Supreme Court case in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself.

The United States Constitution does not explicitly establish the power of judicial review. Rather, the power of judicial review has been inferred from the structure, provisions, and history of the Constitution.[1]

The Supreme Court’s landmark decision on the issue of judicial review was Marbury v. Madison (1803),[2] in which the Supreme Court ruled that the federal courts have the duty to review the constitutionality of acts of Congress and to declare them void when they are contrary to the Constitution. Marbury, written by Chief Justice John Marshall, was the first Supreme Court case to strike down an act of Congress as unconstitutional, unless one counts Hollingsworth v. Virginia (1798) or U.S. v. Todd (1794). Since that time, the federal courts have exercised the power of judicial review many times. Judicial review is now a well settled doctrine. As of 2010, the United States Supreme Court had held unconstitutional some 163 Acts of the U.S. Congress.[3]

http://en.wikipedia.org/wiki/Madison_v._ Marbury

http://en.wikipedia.org/wiki/Judicial_re view_in_the_United_States

Posted by PseudoTurtle | Report as abusive

Blotky is absolutely right. Why put up with Congress just getting in the way of Emperor Obama? Don’t like a law?–just don’t enforce it. Can’t get the wrong people appointed?–just install them anyway. Can’t get laws through Congress?–just tell administrative departments to issue whatever they choose to. In fact, let’s just abolish Congress. The Emperor doesn’t place any value on it.

Posted by BuckeyeNick | Report as abusive