Ken Klukowski is Director, Center for Religious Liberty at Family Research Council. This article appeared on Breitbart.com, April 26, 2013.
U.S. Solicitor General Donald Verrilli has filed a petition with the U.S. Supreme Court, asking the justices to take and reverse a lower-court ruling that President Barack Obama's recess appointments to the National Labor Relations Board (NLRB) are unconstitutional, and therefore that no one must follow any orders issued by NLRB.
On Jan. 25, 2013, the U.S. Court of Appeals for the D.C. Circuit unanimously held Obama violated the Constitution when he declared the U.S. Senate to be in recess (the Senate said it was in session and was holding periodic sessions to meet the constitutional requirements), and that therefore he could fill top-level executive-branch positions without Senate confirmation.
As we previously reported, the appeals court examined the original meaning of the Recess Appointments Clause in the Constitution in what was largely a first-of-its-kind case. It became clear that the Clause did not originally mean what presidents have been saying since Jimmy Carter (late 1970s) it means, that presidents can fill any high-level vacancies during any time the Senate adjourns for more than three days. Instead, the court ruled 3-0 it looks like the president's power is limited to only the year-end recess (typically in December these days, though in earlier times the recess was much longer), and further ruled 2-1 that it only applies to vacancies that open up during that brief window.
For example, if someone retires in September, no president can make a recess appointment to fill that post even during the December recess; the president could only do if for people who retired during the December recess.
If Obama wins, it would not validate his three recess appointments to NLRB (or his appointment of Richard Cordray to head the Consumer Financial Protection Bureau, which is part of a massive lawsuit against Obama's Dodd-Frank financial-services law).
Instead, a win would send the issue back to the D.C. Circuit, for them to decide whether a president has the power to declare the Senate to be in recess anytime there are not enough senators on the Senate floor to conduct business. (Which, taken to its logical conclusion, means that any time the Senate breaks for lunch or goes home at night that the president could appoint Cabinet secretaries or even Supreme Court justices, though all such recess appointments are for less than two years.)
It is very likely the High Court will grant Verrilli's petition in this major separation-of-powers case, and so this matter can be expected to be argued at the Court late this year, with a decision before July 2014.