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Court casts doubt on Obama’s recess appointments

RightMarch December 5, 2012

By: Stephen Dinan
Original Article: http://www.washingtontimes.com/news/2012/dec/5/court-questions-obama-recess-appointments/

A federal appeals court on Wednesday questioned not only President Obama’s controversial January recess appointments but the entire system of such appointments, using oral arguments in a case to cast doubt on whether presidential powers can ever be exercised unless Congress has adjourned for good.

The case involves a challenge to Mr. Obama’s recess appointments to the National Labor Relations Board in early January — during a time when the Senate was holding pro forma sessions every three days, specifically for the purposes of denying him the chance to make those appointments.

Mr. Obama argued that since the full Senate wasn’t actually meeting regularly, lawmakers were technically in an intra-session “recess” and he could use his constitutional power to make appointments not needing the chamber’s consent. But two judges on the U.S. Court of Appeals for the D.C. Circuit questioned not only that move, but every recess appointment made other than during a traditional inter-session recesses that close out each year.

“Once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” said Judge Thomas B. Griffith.

He was joined in his pointed questioning by Chief Judge David B. Sentelle, who said the clause in the Constitution giving presidents recess appointment powers refers to “the recess,” which he said suggests the one at the end of each year, not the breaks Congress regularly takes for holidays, weekends or other reasons.

If the court were to rule that way, it would upset the balance that has been maintained over decades, and would conflict with another appeals court’s precedent — though that didn’t bother Judge Sentelle.

“Forget about a century of precedent — go back to the Constitution,” he told Beth Brinkmann, the Justice Department lawyer who argued the case for the Obama administration.

She warned that going that route would change the system of checks and balances fundamentally.

“There is a long, long history that would be disrupted, and also disrupt the balance of power,” she said.

She said there have been nearly 300 recess intra-session appointments over the last century, and both the Senate and the president have accepted them as legitimate.

The Constitution uses the words “session” and “recess” to refer to several different types of business and breaks. One use of “recess” is for a break from normal legislative business, whether for an hour for lunch or for several days while lawmakers go home. The other is at the end of each year’s session, when Congress adjourns sine die, meaning it won’t meet again.

That has produced two centuries of confusion.

Judge Griffith at one point questioned why the court should be involved at all in what amounts to a dispute between two other branches of government.

“Why drag us into it?” he said.

He also questioned the lawyers challenging the recess appointments, wondering why the Senate itself wasn’t contesting Mr. Obama’s moves. Instead, only Senate Republicans, who are the minority party, have sued.

Senate Minority Leader Mitch McConnell, the lead plaintiff from Senate Republicans, attended the oral argument.

While Judges Griffith and Sentelle peppered lawyers with questions, Judge Karen L. Henderson stayed out of most of the back-and-forth.

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