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Court Ruling Upsets Conventional Wisdom On Recess Appointments

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Court Ruling Upsets Conventional Wisdom On Recess Appointments

Court Ruling Upsets Conventional Wisdom On Recess Appointments

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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.


And I'm Robert Siegel. A bombshell decision today on the limits of executive power. A federal appeals court panel in Washington, D.C. has invalidated President Obama's recess appointments to the National Labor Relations Board. Legal experts say the court's reasoning upends decades of conventional wisdom and deals a big victory to Senate Republicans. NPR's Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: The case was brought by a Pepsi-Cola bottling company in a fight with the union. The company, Noel Canning, sued to challenge a decision by the Labor Relations Board, arguing three board members were appointed in violation of the U.S. Constitution. Without those three members who arrived in January 2012, the board would have no quorum and essentially be out of business.

Noel Francisco argued the case for the company in the U.S. Chamber of Commerce.

NOEL FRANCISCO: We have a system of rules in this country that confine executive power and the courts stand ready to enforce those lines when they're crossed.

JOHNSON: The judges on the appeals court panel all named by Republican presidents answered two big questions.

FRANCISCO: The first is when is the recess appointment power triggered in the first place? And there, what the court said was that it only is triggered during intersession recesses.

JOHNSON: Recesses between annual sessions of Congress, not those short breaks so common these days. And the court said the Senate, not the president, got to decide what it meant by a recess. The court's next holding went even further.

FRANCISCO: The second part of the decision goes to what types of vacancies are eligible for recess appointments in the first place?

JOHNSON: Two judges on the panel, David Sentelle and Karen Henderson, said under their reading of the Constitution, the vacancy had to actually arise during the recess or else no dice. The third judge, Thomas Griffith, said the court didn't need to go that far. He pointed out that until today's ruling, the understanding about the kinds of vacancies open to recess appointments dated all the way back to the 1820s.

He wrote, quote, "We should not dismiss another branch's longstanding interpretation of the Constitution when the case before us does not demand it." John Elwood is a Washington lawyer who has studied the recess appointment power for years. His take...

JOHN ELWOOD: A very, very broad ruling that, if it stands, will significantly diminish the president's recess appointment power.

JOHNSON: Elwood says the decision unsettles decades of conventional wisdom about the practice used by both Republican and Democratic presidents at least 280 times to get around Senate gridlock and appoint agency heads and other executive branch officials. The ruling also puts a legal cloud over more than 100 actions the Labor Relations Board has taken since last year. But each company involved would have to file its own lawsuit to throw out those actions, which could take some time.

The uncertainty extends to the Consumer Financial Protection Bureau, whose leader, Richard Cordray, was appointed on the same day as the NLRB members. White House spokesman Jay Carney says the president disagrees with the ruling.

JAY CARNEY: It basically calls into question 150 years of precedent.

JOHNSON: The Justice Department had no immediate word on an appeal. But Lynn Rhinehart, the general counsel at the AFL-CIO, had this to say.

LYNN RHINEHART: This is one decision that we think is so far out there that we really expect to see it reversed.

JOHNSON: Lawyers for both sides expect the case to wind up in the U.S. Supreme Court. Carrie Johnson, NPR News, Washington.

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