This column by ACRU Senior Legal Analyst Ken Klukowski was published on January 25, 2013 on Breitbart.com.
President Barack Obama just suffered a humiliating defeat in federal court. A top federal appeals court has removed three presidential appointees from power, and invalidated all actions they’ve taken over the past twelve months.
One year ago, Obama filled three seats on the National Labor Relations Board (NLRB)–an essential power center for Obama’s labor-union allies–with recess appointments, claiming that the U.S. Senate was in recess even though the Senate was still in session.
No president in history had ever done such a thing, and Republicans and conservatives immediately denounced it as an unconstitutional power grab. The matter went to court, where Breitbart News covered the judges’ questions and reactions at oral argument.
In Noel Canning v. NLRB, the U.S. Court of Appeals for D.C. Circuit held today that Obama’s three recess appointments are in fact unconstitutional. As such, the three seats on NLRB were never legally filled. Thus NLRB only had two members, while the law requires three members on the five-member Board in order to have a quorum to conduct business or issue orders.
The D.C. Circuit therefore concluded that all NLRB orders issued since these recess appointments were made are entirely void, and NLRB has no power to act at all unless and until the Senate votes to confirm Obama’s nominees.
The head of the controversial new Consumer Financial Protection Bureau (CFPB) created by Dodd-Frank, Richard Cordray, was also installed as one of these non-recess appointments. While the D.C. Circuit did not address that appointment, it is now clear that Cordray’s appointment was also unconstitutional, and so he too will be removed from power and all his actions to date nullified. Former White House Counsel C. Boyden Gray–a very well-respected D.C. lawyer–currently has a lawsuit against CFPB, where this decision will secure his victory on part of his case.
This recess-appointment issue will now likely go to the Supreme Court, where it is likely to suffer the same fate.