In invalidating Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau, the three-judge panel issued a troubling decision. And one that should spark a response. For it shows us, yet again, that it matters who sits on our courts.
First, this decision flies in the face of 150 years of practice by presidents of both parties. It represents the judicial overreach that Republican politicians usually decry. There were a total of 260 intra-session recess appointments made between 1867 and 2000, according to the nonpartisan Congressional Research Service. President George W. Bush made 141 intra-session recess appointments, and Obama has now made a total of 26.
The court’s additional ruling that a vacancy must arise during a recess for a president to make a recess appointment is also contrary to 190 years of precedent – as another federal appeals court ruled in 2004.
The judges went well beyond the question they were asked to resolve, issuing a ruling that was far more sweeping than necessary, or expected. The court essentially eliminated the president’s constitutionally mandated power to make recess appointments. Yet is is ever more difficult to move nominees – even consensus nominees – through the Senate confirmation process.