Do you remember when President Obama made appointments to the National Labor Relations Board while the Senate was still technically in session? Well, a lawsuit was filed and the case came before a federal appeals court today. The judges questioned not only the NLRB appointments, but all of Obama’s recess appointments.
The case involves a challenge to Mr. Obama’s recess appointments to the National Labor Relations Board in early January — during a time when the Senate was holding pro forma sessions every three days, specifically for the purposes of denying him the chance to make those appointments.
Mr. Obama argued that since the full Senate wasn’t actually meeting regularly, lawmakers were technically in an intra-session “recess” and he could use his constitutional power to make appointments not needing the chamber’s consent. But two judges on the U.S. Court of Appeals for the D.C. Circuit questioned not only that move, but every recess appointment made other than during a traditional inter-session recesses that close out each year.
“Once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” said Judge Thomas B. Griffith.
He was joined in his pointed questioning by Chief Judge David B. Sentelle, who said the clause in the Constitution giving presidents recess appointment powers refers to “the recess,” which he said suggests the one at the end of each year, not the breaks Congress regularly takes for holidays, weekends or other reasons.
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