Hoist on His Own Petard

by Todd Gaziano

President Obama seems to take pleasure in acting unilaterally in matters that are properly shared with Congress, especially if his acting alone energizes his base and dispirits conservatives and others who cling to constitutional order. He may believe it is worth taking the risk that a court will overturn a few of his illegal actions. But what if a court does more than simply invalidate the actions themselves?

Today, a unanimous ruling by a three-judge panel of the D.C. Circuit Court of Appeals struck down President Obama’s purported “recess appointments” of three members of the NLRB — and went further in rebuking the administration in three important respects.

First, today’s ruling is much broader than expected — it severely limits the president’s recess-appointment power. Two days after the illegal recess appointments were made, Ed Meese and I wrote an op-ed in the Washington Post explaining an important but narrow ground on which a court might overturn them. We also warned of the effects that litigation could have:

President Obama’s flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency. There eventually may be litigation over the illegal appointments, but it will be a failure of government if the political branches do not resolve this injustice before a court rules.

Our constitutional-law-professor-in-chief ignored this advice and is now hoist on his own petard. He is worse off than he was when he started, because the court’s ruling invalidates all appointments made during recesses that occur in the middle of a Senate session. Under the ruling, appointments will be possible only in the recesses between sessions of the Senate, which are unlikely to occur, at least until the end of this year, without unusual Senate action.

Moreover, two of the three judges also ruled on an even broader constitutional ground, holding that the vacancy to be filled must actually arise during such an intersession recess, not prior to that period. The third judge expressed no opinion on this last issue.

The second setback is that 13 months’ worth of rulings, regulations, and other actions by the NLRB are now in question, because without the illegal recess appointments the NLRB lacked a quorum to act during all that time. The White House is disputing this, or at least Jay Carney is trying to, but it is hard to see how today’s ruling is limited to “once case, one company.” The courts have doctrines that might ameliorate some harsh results regarding pay and such, but most of the board’s actions are at least in doubt. Thus, not only must the president secure proper Senate confirmation for these officials, but the NLRB likely must start over when it has a quorum.

The third setback for the administration is that many of the actions of the Consumer Financial Protection Board (CFPB) are in doubt as well. Richard Cordray, who received a purported recess appointment on the same day and in the same manner as the three invalid NLRB members, would have been the first head of that agency. Thus, no prior head of the agency could have made lawful delegations of authority. Moreover, the CFBP’s organic statute provides that no acting head may issue regulations. The eventual effect of today’s decision on pending and future CFPB actions will take many months to sort out, but the rest of the D.C. circuit is bound by the ruling today unless the entire appeals court (as opposed to the three-judge panel) or the Supreme Court reverses it.

Our unilateral president must take his unilateral medicine. The administration may appeal today’s loss to the entire D.C. court, but that is also dangerous, since there are other grounds on which the court might sustain the ruling, including the one Ed Meese and I presented in the piece linked to above. The solicitor general may have little choice but to use his office’s capital to seek Supreme Court review.

My prediction: The justices will take the case and may narrow the grounds for striking down the illegal appointments. But I don’t think a Supreme Court majority will see any pressing need to contort the Constitution to uphold these unilateral actions.

— Todd Gaziano is the director of the Center for Legal and Judicial Studies at the Heritage Foundation and a former lawyer in the Justice Department’s Office of Legal Counsel, which advises the president on recess-appointment matters.

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