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Court says Obama recess appointments invalid

Published January 25, 2013 4:25 pm

Politics • Utah's Mike Lee fought hard against the president's bypassing of Senate.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A federal appellate court ruled Friday that three of President Barack Obama's recess appointments were unconstitutional, siding with Senate Republicans, all of whom joined in on the complaint.

But no senator fought harder against Obama's move to place three people on the National Labor Relations Board than Utah Sen. Mike Lee.

He not only joined his GOP colleagues in a friend-of-the-court brief, he also waged a solo protest by voting against all of the president's appointments for a year. That protest brought Lee considerable criticism from even members of his own party who said it allowed Obama to paint Republicans as partisan obstructionists. Lee also testified before a House committee on the matter.

The senator relished the decision by the Court of Appeals for the D.C. Circuit.

"Today's decision represents vindication of the principled stand I have taken against the president's disregard of our nation's Constitution," Lee said in a statement. "The court's ruling today is a sober reminder of how far detached this administration has become from our constitutional heritage and the rule of law."

Obama not only named three members to the labor board, but he also placed Richard Cordray at the head of the new Consumer Financial Protection Bureau on Jan. 4, 2012, while the senators were on their holiday break.

But that doesn't mean the Senate was in recess. The body was holding pro forma sessions every three days, largely to avoid recess appointments.

The president argued those pro forma sessions were invalid when making the controversial personnel decisions. He said the Senate hadn't acted on his appointments not over a concern for the candidates but because Republicans didn't like the agencies they would lead.

"When Congress refuses to act and, as a result, hurts our economy and puts our people at risk, then I have an obligation as president to do what I can without them," Obama said at the time.

The appellate court, which is one step below the Supreme Court, flatly disagreed and said the Constitution is clear on the matter: The Senate was still in session.

"Considering the text, history, and structure of the Constitution," the ruling states, "these appointments were invalid from their inception."

The White House wouldn't say whether it would appeal the decision, but spokesman Jay Carney said: "The decision is novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations. We respectfully but strongly disagree with the ruling."

The decision was limited to the National Labor Relations Board positions and had no bearing on Cordray, whom Obama renominated this week. Cordray's recess appointment is the subject of another lawsuit.

Lee argued that the ruling casts doubt over all decisions of the NLRB in the past year.

While Lee waged a more public battle, all 42 Republican senators joined on a brief supporting the legal claim of a business that bottles soda, including Sen. Orrin Hatch, R-Utah, who also led out in a letter to the president demanding that he not use his recess appointment power to fill the three NLRB vacancies.

"Today's ruling reaffirms that the Constitution is above political party or agenda — despite what the Obama administration seems to think," Hatch said. "With this ruling, the D.C. Circuit has soundly rejected the Obama administration's flimsy interpretation of the law, and will go a long way toward restoring the constitutional separation of powers."

The court not only ruled these three appointments invalid, but it also greatly restricted the president's ability to make recess appointments. It found the president can bypass a Senate confirmation only if a position is vacated during a sanctioned recess of the Senate.

"The power of a written constitution lies in its words. It is those words that were adopted by the people," the ruling reads. "When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government."

mcanham@sltrib.com

Twitter: @mattcanham