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Presidential power

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A federal appeals court has ruled that President Obama overstepped his authority to make recess appointments allowing him to bypass the Senate’s confirmation role when he named three appointees to the National Labor Relations Board.

President Obama invoked his constitutional authority to make appointments requiring the advice and consent of the Senate when it is in recess to name the head of the new Consumer Financial Protection Board and three members of the National Labor Relations Board so it could have a quorum to operate. Their nominations had been blocked by Senate Republicans.

Presidents of both parties have used recess appointments to get around procedural obstacles holding up Senate confirmation. To prevent that, the Senate in recent years has used parliamentary procedures to keep the chamber technically in session even when most of its members had left Washington and no business was on the calendar.

President Obama in turn responded. He claimed the power to decide when Congress is in session. The administration determined that the pro forma sessions — some lasting less than a minute — constituted a recess clearing the way for him to make his appointments. Ruling on a challenge to the NLRB appointments, a three-judge panel rejected President Obama’s claim, saying it would “demolish the checks and balances inherent in the advice-and-consent requirement” in the Constitution.

The judges said it would give the president “free reign to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”

“Allowing the president to define the scope of his own appointment power would eviscerate the Constitution’s separation of powers,”Chief Judge David Sentelle wrote.

Republicans are praising the decision, although they might regret it when one of their own occupies the White House .

The administration is expected to appeal the ruling, which conflicts with what some other federal courts have said. With the appointments invalid, the NLRB would lack the quorum required to issue rulings. The decision immediately affects a single NLRB case, but it calls into question the legitimacy of 200 NLRB decisions made following the appointments. The U.S. Chamber of Commerce is advising companies to challenge rulings made against them in the past year, which could lead to turmoil.

However, over the past 50 or 60 years, presidents have assumed more power as with the increasing use of signing statements to ignore provisions of laws. The Court of Appeals decision could lead to a curb on the ever-expanding powers of presidents.

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