The federal appeals court in Washington, D.C., had the option of ruling narrowly on the question of presidential “recess” appointments. President Obama made three appointments to the National Labor Relations Board last year during “pro forma” Senate sessions, the chamber in recess, practically speaking, yet technically at work, the gavel pounded every few days. Did the president overstep in bypassing the confirmation process?
The judges answered yes. There are formidable arguments on both sides. Three other appeals courts have found valid similar recess appointments in the middle of a Senate session.
The Washington, D.C., appeals court didn’t stop there. It tossed aside 150 years of practice by Democratic and Republican presidents. It limited recess appointments to the formal breaks between sessions, and two of the three judges on the panel held further that the president may only fill the vacancies that occur during such recesses.
Those arguing the case did not ask for such a sweeping decision. The judges acted on their own. The result calls into question hundreds of decisions by the National Labor Relations Board the past year, not to mention reducing the board to one confirmed member. It also may put in jeopardy court decisions involving judges who reached the bench via recess appointments.
Richard Cordray reached his post leading the new Consumer Financial Protection Bureau by the same route. Recall that the battle over his nomination featured a partisan fury as intense as that involving the labor relations board. All of it reinforces the politics at work, the president and opposition senators vying for the upper hand.
Unfortunately, the Washington, D.C., appeals court now has tipped the balance far in favor of the lawmakers. Better for judges to show restraint, or respect for the decades of allowing these political power struggles to play out.