Obama’s NLRB Argument: ‘Trying to Have It Both Ways,’ Says Law Professor

By Fred Lucas | January 30, 2013 | 7:15 AM EST

President Barack Obama, surrounded by his family, swears to preserve, protect and defend the Constitution of the United States, at his second inauguration on Jan. 21, 2013. (AP Photo/Evan Vucci)

(CNSNews.com) – President Obama was “trying to have it both ways” when he chose to recess-appoint three members of the National Labor Relations Board on Jan. 4, 2012, says a constitutional law professor.

Although the appointments came one day after Congress began its 2012 annual session, the administration justified its appointments by arguing that Congress was "closed for business."

Article 2, Section 2, Clause 3 of the U.S. Constitution says: “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” (emphasis added).

By making the appointments on Jan. 4 -– the day after the new session began -- the president was making sure his appointees would serve to the end of 2013 (the end of the new session.) If the appointments had been made on Jan. 3 -– the end of the old session -– the appointees would have served only through December 2012.

Last week, the Court of Appeals for the District of Columbia shot down the entire scheme, ruling that Obama’s NLRB recess appointments were unconstitutional.

John Eastman, a constitutional law professor at Chapman University School of Law, said the administration’s argument is contradictory.

First, Obama decided Congress was in recess, when technically it was not; and then he waited until the start of the new session so his appointees could serve until the end of 2013.

To avoid the prospect of recess appointments, Congress in late 2011 did not go into recess as it normally does over the Christmas holiday. Instead, it went into pro-forma session, meaning that someone was there to gavel the session to order every few days, even though very little business actually was conducted.

But the Justice Department, in its final brief to the court, argued that while Jan. 3, 2012 was the “first day of the Senate’s current annual session,” the Senate remained “closed for business for nearly three weeks until January 23.” During that 20-day period, the administration argued, the Senate “could not provide advice or consent on Presidential nominations.”

“The president’s argument that a new session started Jan. 3 [2012] and these appointments were made Jan. 4, so technically they would have until the end of 2013 (to serve their terms), that just acknowledges that Congress was in session. He’s trying to have it both ways,” Eastman told CNSNews.com.  

“That’s a little bizarre,” Eastman said. “So he made the appointments -- not during a recess -- for vacancies that didn’t occur during the recess and over a time span when the Senate was never in recess at all. And he is claiming he has the constitutional authority to do that, and all of the rules that they adopted after being appointed illegally are going to be valid, and they are persisting in making that argument after the D.C. Circuit told them what they did was illegal.”

NLRB Chairman Mark Gaston Pearce says the board “respectfully disagrees” with the court’s ruling and believes that the president’s actions “ultimately will be upheld” by the U.S. Supreme Court.

The appeals court, in its Jan. 25 ruling, was very clear that Obama acted unconstitutionally by making his own decision on when Congress is in recess.

“An interpretation of the 'recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advise-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session, and he is merely displeased with its inaction. This cannot be the law," wrote Chief Justice David Sentelle.

The court ruled that “recess” happens only between sessions of Congress (intercession), not during sessions (intracession): “In short, we hold that ‘the Recess’ is limited to intersession recesses,” the court wrote. It noted that the NLRB “conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued.”

The court ruled that recess appointments must be made for vacancies that arise during the intersession, but that was not the case for the NLRB vacancies.

Obama’s actions have caused an unnecessary constitutional crisis by calling into question every case ruled on by the current NLRB, said Anthony Riedel, spokesman for the National Right to Work Committee.

“He pretty much said: ‘Whenever I determine the Senate in recess, that’s when it’s in recess.’ So anytime they’re on a lunch break, he can just make these appointments, if you go to the extreme,” Riedel said. “Not only was the timing challenged and brought down by the court, but the actual appointments themselves. So, in theory, those appointments never should have happened, which jeopardized 300 cases NLRB has made in a year.”

Curt Leavey, president of the Committee for Justice, a legal group, noted that Obama is not the first president to make recess appointments during a congressional session rather than between sessions:

“To be fair to Obama, this sort of double use of “session” (during and between) has been going on for a while,” Leavey said. “Where Obama really pushed it beyond anything plausible was when he said, ‘I get to decide when you’re in recess. I don’t care if the Senate doesn’t say it’s in recess.’ The hypocrisy has been going on for a while.”

White House Press Secretary Jay Carney last Friday called the court’s ruling “novel and unprecedented.”

“It contradicts 150 years of practice by Democratic and Republican administrations,” Carney said. “So we respectfully but strongly disagree with the rulings. There have been, according to the Congressional Research Service, something like 280-plus intrasession (during the session) recess appointments by, again, Democratic and Republican administrations dating back to 1867. That’s a long time and quite a significant precedent.”

That’s not true, said Eastman, the Chapman University professor.

“Jay Carney was lying. We need to state that in no uncertain terms,” Eastman said. “The first 80 years of our history, no one used a recess appointment. And then it was used, and only in intersession (between session) recesses. There were two or three of them in the 1920s that were lengthy intrasession recesses. And gradually, through mission creep, the time period for what qualified as an intrasession recess has shrunk.”