Today, President Obama’s belief in a “living Constitution” came up against a ruling that enforced our fixed Constitution. A 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously declared Obama’s “recess” appointments to the National Labor Relations Board to be unconstitutional. In making those appointments when the Senate was still in session, Obama sought to do an end-around that deliberative body — a move made all the more striking by the fact that the Senate was, and is, controlled by his own party.

The Associated Press writes, “The unanimous decision is an embarrassing setback for the president.” The AP adds, “The Obama administration is expected to appeal the decision to the U.S. Supreme Court, but if it stands, it means hundreds of decisions issued by the board over more than a year are invalid.” (Under the ruling, the board lacked a quorum of legitimately appointed members.)

Referring to the relevant language in Article II, Section 2 of the Constitution, the judges wrote in their opinion, “It is universally accepted that ‘Session’ here refers to the usually two or sometimes three sessions per Congress. Therefore, ‘the Recess’ should be taken to mean only times when the Senate is not in one of those sessions.” They added, “In short, we hold that ‘the Recess” is limited to intersession recesses,” adding that “the Recess” is not synonymous with a mere “adjournment.”

The judges observed that no president from George Washington through Abraham Lincoln ever attempted to make an “intrasession” appointment (that is, an appointment when Congress was in session) without the advice and consent of the Senate, as Obama attempted to do. From the end of the Civil War through the end of World War II, only three such appointments were attempted. In the judges’ words, “[I]t is well established that 80 years after the ratification of the Constitution, no President [had] attempted such an appointment, and for decades thereafter, such appointments were exceedingly rare.”

In addition to ruling that the Constitution requires recess appointments to be made between Senate sessions, rather than during them, the judges added the following limitation on executive overreaching: “Consistent with the structure of the Appointments Clause and the Recess Appointments Clause exception to it, the filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose.” They explained: “There is no reason the Framers would have permitted the President to wait until some future intersession recess.” (Two of the vacancies in question under Obama occurred almost a year and a half before he sought to circumvent the Senate to fill them.)

The judges wrote, “The Framers emphasized that the recess appointment power served only as a stopgap for times when the Senate was unable to provide advice and consent.” If the reading of the clause advanced by the Obama administration were to prevail, then the “President could simply wait until the Senate took an intrasession break to make appointments, and thus ‘advice and consent’ would hardly restrain his appointment choices at all.” This, the judges said, “would eviscerate the Constitution’s separation of powers.”

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