Court: Obama appointments are unconstitutionalNow this is good, we have a sign of the rule of law. But this is the part I really love.
WASHINGTON (AP) -- In an embarrassing setback for President Barack Obama, a federal appeals court panel ruled that he violated the Constitution in making recess appointments last year, a decision that would effectively curtail a president's ability to bypass the Senate to fill administration vacancies.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board because the Senate was officially in session — and not in recess — at the time. If the decision stands, it could invalidate hundreds of board decisions.
The court said the president could only fill vacancies with the recess appointment procedure if the openings arise when the Senate is in an official recess, which it defined as the break between sessions of Congress.
...Obama made the recess appointments on Jan. 4, 2012, after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.
But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for so-called "pro forma" sessions...
..."Either the Senate is in session, or it is in recess," Chief Judge David Sentelle wrote in the 46-page ruling. "If it has broken for three days within an ongoing session, it is not in "the Recess" described in the Constitution."
Simply taking a break of an evening or a weekend during a regular working session cannot count, he said. Sentelle said that otherwise "the president could make appointments any time the Senate so much as broke for lunch."
The judge rejected arguments from the Justice Department's Office of Legal Counsel, which claimed the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.Separation of powers. What a quaint concept. Maybe it will catch on.
"Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers," Sentelle wrote.