What started as an esoteric dispute over whether a Senate “pro forma” session can technically be considered “recess” morphed into a larger question of executive power when a federal appeals court rejected the Obama Administration’s recess appointments to the National Labor Relations Board.
But the court went beyond the narrow dispute over pro forma sessions and issued a far more sweeping ruling than expected. Legal specialists said its reasoning would virtually eliminate the recess appointment power for all future presidents at a time when it has become increasingly difficult to win Senate confirmation for nominees.
Recess appointments have always been somewhat controversial as they usually happen when a nominee can not get through the Senate confirmation process or at least get through it at the time. Given the dysfunctional nature of the Senate these appointments are often necessary just to keep the government running especially the judicial branch where the labyrinthine confirmation process can take months or even years. If this ruling stands the opposing party in the Senate will be able to do more than simply block nominees it does not like from full appointments – it could cripple any future President’s ability to govern.
Now, not surprisingly, the Obama Administration is preparing to go back to court to fight the ruling.
While President Barack Obama considers his next move in one high-stakes legal fight to fill vacant jobs, his lawyers expect to go to court at least twice more to argue for his power to appoint when the U.S. Senate is not meeting.
Federal appeals courts in both Philadelphia and Richmond, Virginia, are likely to hear the issue of recess appointments in March, possibly during the same week. The hearings will be an opportunity for Obama’s lawyers to rebound after a blockbuster ruling on Friday, when a court in Washington, D.C., held that three recess appointments to the National Labor Relations Board (NLRB) were invalid.
The stakes could not be higher for the President due to the filibuster having not been reformed. If Obama is unable to make recess appointments and the Republicans continue their obstructionism the executive branch might be too busy fighting to function to pursue the President’s policy agenda. What happens in March could determine the rest of Obama’s presidency.
Photo by ChvhLR10 under Creative Commons license