The News Courier in Athens, Alabama

State and Nation

January 25, 2013

Court: Obama appointments are unconstitutional

— WASHINGTON (AP) — In a setback for President Barack Obama, a federal appeals court ruled Friday that he violated the Constitution in making recess appointments last year, a decision that could severely curtail the president's ability to bypass the Senate to fill administration vacancies.

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said Obama did not have the power to make three recess appointments to the National Labor Relations Board because the Senate was officially in session — and not in recess — at the time. If the decision stands, it could invalidate hundreds of board decisions made over the past year.

The court also ruled that the president could only make recess appointments if the openings arise when the Senate is in an official recess, which it defined as the once-a-year break between sessions of Congress.

White House press secretary Jay Carney said the administration strongly disagrees with the decision and that the NLRB would continue to conduct business as usual, despite calls by some Republicans for the board members to resign.

"The decision is novel and unprecedented," Carney said. "It contradicts 150 years of practice by Democratic and Republican administrations."

The Justice Department hinted that the administration would likely appeal the decision by three conservative judges appointed by Republican presidents to the U.S. Supreme Court. "We disagree with the court's ruling and believe that the president's recess appointments are constitutionally sound," the statement said.

The court's decision acknowledges that it conflicts with what other federal appeals courts have held about when recess appointments are valid, which only added to the likelihood of an appeal to the high court.

The ruling also threw into question the legitimacy of Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, also made on Jan. 4, 2012, has been challenged in a separate case.

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