Another federal appeals court has ruled that President Obama’s power to make recess appointments is somehow lesser than previous presidents.

WASHINGTON (AP) — A second federal appeals court has found that President Barack Obama exceeded his power when he bypassed the Senate to install a member to the National Labor Relations Board.

The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled that recess appointments can be made only between sessions of the Senate, not any time the Senate is away on a break. [...]

The latest ruling says Obama had no constitutional authority to install a member to the labor board in 2010 while the Senate adjourned for two weeks.

As the Associated Press states, these rulings would invalidate hundreds of recess appointments made by previous presidents. And I can’t even guess which way the Supreme Court will eventually rule on this, but I believe they should rule in favor of the administration unless they want to reverse a century of precedent.

Average people should hope that the Supreme Court rules in favor of the administration because, in some cases, a recess appointment has been the only way to install a functioning leadership structure while Republicans obstruct nominees for months or even a year at a time.

  • Christopher Foxx

    Obama to Congress: “OK, fine. Enough of this shit. I’m not going to send you any more nominations for you to ignore. I’m just wait until you’re not in session then make several hundred recess appointments.”

    Would be nice.

  • mrbrink

    Here’s just a couple of parts from the logically twisted decision: Noel Canning v. NLRB:

    This is Judge Sentelle writing about the court’s own jurisdiction in resolving the matter:

    We also agree with the Board [NLRB] that we lack jurisdiction to consider Noel Canning’s choice of law argument. Section 10(e) of the NLRA forbids us from exercising jurisdiction to hear any “objection that has not been urged before the Board.”

    Meaning, the question of the very legitimacy of the NLRB to hear this case and/or whether or not the NLRB, as comprised, constitutes a duly appointed quorum– was not raised by Canning. So the court, in its Judge Alvin ‘J.P’ Valkenheiser judgement:

    We note at the outset that there is a serious argument to be made against our having jurisdiction over the constitutional issues. Section 10(e) of the NLRA, governing judicial review of the Board’s judgments and petitions for enforcement, provides: “No objection that has not been urged before the Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” 29 U.S.C. § 160(e). The record reflects no attempt by petitioner to raise the threshold issues related to the recess appointments before the Board. Our first question, then, is whether this failure to urge the objection before the Board comes within the exception for “extraordinary circumstances.” We hold that it does.

    Under the “extraordinary circumstances” clause, a right wing judge found nothing extraordinary about the court’s own power to nullify the last 33 years of recess appointments to the NLRB and thousands of its decisions.

  • mrbrink

    It is nonsense. They’re out of their fucking minds.

    Every decision they make nullifying the president’s recess appointments to the NLRB is based upon an overreaching false premise, which is:

    The very courts they sit upon are the hollowed out result of right wing obstruction of President Obama’s nominations to those courts.

  • D_C_Wilson

    Here’s a shocker:

    All of the judges who have ruled against Obama’s ability to make recess appointments were republican appointees.

    • Christopher Foxx

      Any of them recess appointments?

  • SlapFat

    Mobius strip of stupidity:

    Court invalidates something related to Obama.

    Obama can’t get any judges appointed because somehow that’s not allowed.

    Court invalidates something related to Obama.

    Obama can’t get any judges appointed because somehow that’s not allowed.


    If this isn’t a piercing scream into the darkness for filibuster reform/elimination I don’t know what is.