Obama Recess Picks Meet Skepticism From Appeals Judges

President Barack Obama’s appointment of labor board members last year while most senators were out of town was greeted with skepticism from appeals court judges weighing whether he overstepped his constitutional powers.

Two judges on the U.S. Court of Appeals in Richmond, Virginia, during 90-minutes of argument yesterday, repeatedly asked lawyers in the case who has the power to decide when the Senate’s in session and how long a break must be before the president may install officials temporarily under the Recess Appointments Clause.

“We suggest some deference to the president,” Beth Brinkmann, a Justice Department lawyer, told the judges.

“I don’t think that would be supported by the separation of powers agreement,” U.S. Circuit Judge Clyde Hamilton replied.

In an argument laced with references to George Washington and Abraham Lincoln’s appointments and to the pre-Constitution Articles of Confederation, the government sought to portray Obama’s temporary appointment of three members of the National Labor Relations Board as a common use of presidential power when the Senate isn’t available to confirm a nominee.

The Richmond panel is the second to hear a challenge to the labor board picks since the U.S. Court of Appeals in Washington in January found their appointments were unconstitutional. An appeals court in Philadelphia this week heard arguments in a similar case.

Supreme Court

The Obama administration said this month it will ask the Supreme Court to reverse the Washington ruling in a petition to be filed by April 25. Divergent decisions among the circuits would make the high court more likely to take the case.

“It would benefit the Supreme Court if the justices could get rulings from a few more courts before they move on this, especially those that embark on a deep historical analysis as the D.C. Circuit did,” John Elwood, a former Justice Department official now at Vinson & Elkins LLP in Washington, said in an interview before yesterday’s hearing.

The cases arose from a dispute between the administration and congressional Republicans in 2011.

To prevent Obama from making appointments after Congress started a holiday break in December of that year, House and Senate Republicans refused to formally adjourn. The Senate then held so-called pro-forma sessions that sometimes involved a single senator’s appearance in the chamber every third day.

Bypassing Senate

Obama made the appointments Jan. 4, 2012, bypassing Senate confirmation by asserting lawmakers were in recess.

Senate Republicans, who filed a brief supporting the challengers in the Washington case, disagreed the chamber was, in fact, in recess at the time.

The Washington panel, agreeing the Senate wasn’t in recess, unanimously ruled Jan. 25 that the labor board picks were “constitutionally invalid.” A recess is the period between congressional sessions, known as an intersession recess, as opposed to the more frequent breaks that the Senate takes throughout its legislative session, the court ruled.

Two of the judges went further, saying valid appointments could be made only for vacancies that arose while the Senate was adjourned for an intersession recess.

The Virginia court is considering two cases brought by employers who argue NLRB decisions against them should be reversed because the board lacked a legally appointed quorum.

Sharp Questions

During yesterday’s argument Brinkmann was questioned sharply by Hamilton, an appointee of Republican President George H.W. Bush, and U.S. Circuit Judge Allyson Duncan, who was nominated by Republican President George W. Bush.

“If we accept your interpretation that the recess does not refer solely to intersession recesses, then what are our parameters for determining when intrasession recesses are appropriate intervals for appointments?” Duncan asked Brinkmann.

Brinkmann wouldn’t give a specific time period.

She argued that when Obama made the appointments, the Senate was in recess because no business was conducted for 20 days.

Hamilton, who referred to the pro forma sessions, noted that the Senate on voted Dec. 23 to extend temporarily the payroll tax cut during this period.

“Can you tell me that meant the Senate was in session by their own terms?” Hamilton asked.

‘Own Words’

“Yes,” Brinkmann said. “They said in their own words that they would not conduct any business.”

“Despite that understanding, they did conduct business,” Duncan said.

Hamilton also tried to pin the administration down on a time period.

“The board never states how short a break is too short for the Recess Appointments Clause,” Hamilton said to Brinkmann.

He asked whether the Senate majority leader taking a four- day trip to Williamsburg, Virginia, would be a recess.

The questions were similar to those U.S. Circuit Judge David Sentelle asked Brinkmann in the Washington case in December. Sentelle wrote his panel’s opinion.

When Brinkmann argued that until the disputed appointments presidents installed 400 judges and officials through intrasession recess appointments, U.S. Circuit Judge Albert Diaz shot back, “That’s history.”

‘Genie’ Out

Diaz, an Obama appointee, said “the genie is out of the bottle” regardless of whether the political branches agree on the extent of recess appointment powers. Every recess appointment will face litigation, he said.

“Employers will raise this issue in every case,” he said.

At least 30 cases were put on hold by judges in the U.S. Court of Appeals in Washington while the Obama administration considered its options, according to NLRB data.

In recent years, Democratic President Bill Clinton made 139 recess appointments, while George W. Bush made 171. Obama, a Democrat, has made 32, according to the Congressional Research Service.

The lead Richmond case is National Labor Relations Board v. Enterprise Leasing Company-Southeast LLC, 12-01514, U.S. Court of Appeals for the Fourth Circuit (Richmond). The Washington case is Noel Canning v. National Labor Relations Board, 12-01115, 12-01153, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in the U.S. Court of Appeals in Richmond at +1- tschoenberg@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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