On Wednesday, in NLRB v. Noel Canning, the Supreme Court unanimously struck down President Obama’s “recess” appointment of NLRB members during a non-existent recess, saying there has to be an actual Senate recess (like a break of ten days or more) for the President to make a recess appointment.
As University of Tennessee law professor Glenn Reynolds notes, the “recess appointment case was the 13th time the Supreme Court has ruled unanimously against the Obama Administration since 2012.” The Obama administration takes such extreme positions that even liberal Supreme Court justices ideologically sympathetic to it sometimes have to rule against it.
The Supreme Court rightly, and unanimously, rejected President Obama’s radical interpretation of the Constitution’s recess appointments clause. His interpretation would, as D.C. Circuit Judge David Sentelle noted, have given Obama “free rein 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,”” gutting constitutional checks and balances against unqualified presidential appointments.
Its ruling also underscores the unconstitutionality of Obama’s “recess” appointment of Richard Cordray as head of the Consumer Finance Protection Bureau. He was appointed on the same day in the same non-existent “recess” as the invalidly-appointed NLRB members, as the Competitive Enterprise Institute noted in its amicus brief to the Supreme Court, and thus, many of his actions while invalidly appointed and without authority to act were under a cloud. A CEI case that challenges his appointment and the constitutionality of other aspects of the Dodd-Frank financial “reform” law – State National Bank of Big Spring v. Lew — remains pending.
As George Mason University Law Professor Ilya Somin notes in the Washington Post, this defeat is part of “a series of other unanimous setbacks for the administration in important constitutional cases over the last few years, which [Somin] wrote about in a USA Today op ed last year. The administration’s unanimous defeats in significant constitutional cases cover a wide range of issues, including freedom of religion, property rights, executive power, and the Fourth Amendment. What these otherwise disparate cases have in common is a strong reluctance to accept even modest limits on federal authority.”
As Professor Jonathan Adler observes, “none of the justices were willing to accept the position of the Obama Administration, which was unnecessarily extreme. In choosing the make the recess appointments in the way it did, such as by not following precedents set by prior administrations (including Teddy Roosevelt) and filling some Board spots that the Senate never had time to fill, the Administration adopted a stance that was very hard to defend, so it could not attract a single vote.”
Generally, our Constitution’s system of checks and balances requires Senate approval of Presidential appointees, but this requirement, found in Article II’s Appointments Clause, contains an exception for temporary recess appointments made during “the recess” of the Senate.
The Obama administration argued (and 5 of the 9 justices agreed) that the Constitution’s recess appointments clause allows appointments not just in “intersession breaks” but also “breaks within a session (i.e., intrasession breaks).” But President Obama’s “recess” appointments was not be valid even under that broader reading of the recess appointments clause since there simply was no “recess” of any kind (as I previously explained).
Obama’s appointments of the NLRB members would be valid only under a radically expansive interpretation of the Recess Appointments Clause that would gut the Senate’s power to review Presidential appointments. The NLRB and the Obama administration argued that recess appointments can be made whenever “the Senate is not open to conduct business” — presumably including when the Senate goes home for the evening or even takes a lunch break — and even includes “periods in which the Senate holds pro forma sessions” but is not available to vote on nominations. This argument is of “recent vintage,” noted the appeals court, and is plainly contrary to the Recess Appointments Clause’s “meanings at the time of ratification” of the Constitution.
The logic of the Supreme Court’s decision also invalidates Obama’s “recess” appointment of Richard Cordray to head the powerful Consumer Financial Protection Bureau (CFPB). Cordray’s appointment was as invalid as the NLRB appointments, since he was “recess” appointed by Obama during the same non-existent recess, on the very same day.
Earlier, when the D.C. Circuit Court of Appeals had declared the NLRB recess appointments invalid, the Obama administration thumbed its nose at the D.C. Circuit, saying it would not fix the constitutional violation identified by the court, but rather would simply continue to defend 200 other NLRB decisions issued by the three invalidly appointed NLRB members as if those decisions were valid. It also had indicated that it would disregard the ruling’s binding ramifications for Cordray’s recess appointment, even though he was appointed on the very same day. Cordray’s “recess” appointment to the CFPB during a non-existent “recess” is one of several constitutional violations challenged in State National Bank of Big Spring v. Lew, another lawsuit pending in Washington, D.C. That case also challenges provisions of the law that created the CFPB, the 2010 Dodd-Frank Act.
Just as the NLRB’s actions were ruled invalid by the courts (since they were taken by invalidly-appointed members), Cordray’s actions as CFPB director were likewise invalid. Just as the NLRB’s order was vacated in the Noel Canning case, so, too, should the CFPB’s actions be vacated by the courts (even assuming the CFPB itself is constitutional, despite its unusual lack of accountability). Lawyers who advise clients on finance and banking cases noted that obvious fact at the time of the D.C. Circuit’s ruling against the NLRB (which was later affirmed by the Supreme Court), observing that “If the Cordray appointment is void, then so too is every supervisory action and every new regulation promulgated by the CFPB arising out of newly created bureau powers.”
But White House spokesman Jay Carney argued that the decision’s implications for the CFPB (and for other decisions by the NLRB) could just be ignored. “Carney said the ruling affects only one case and ‘has no bearing on’ Cordray’s appointment.” It applied only to “one court, one case, one company,” he said. But in reality, as reporters noted, the decision was “binding law for any cases” pending in Washington, such as the challenge to the CFPB. The White House’s position outraged members of Congress, including a committee chairman who noted that it was “clear” in light of the D.C. Circuit’s decision that Cordray’s “appointment was also unconstitutional,” “as a number of legal scholars” had likewise “concluded, and accordingly noted that the committee could not legally even “accept testimony from Richard Cordray” given his non-existent legal authority to hold office.
As the D.C. Circuit had noted, “allowing the President to define the scope of his own appointments power,” as the Obama administration wishes, “would eviscerate the Constitution’s separation of powers. The checks and balances that the Constitution places on each branch of government serve as ‘self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.’ . . An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein 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.”
Obama’s invalid appointment of the CFPB’s director was particularly disturbing in light of the CFPB’s vast, uncabined authority (Congress has no control over its budget, it has a virtually standardless grant of authority to regulate the entire financial sector, and its director, once appointed, can’t be replaced by a succeeding president who disagrees with his policies). That sweeping authority is the subject of a pending constitutional challenge in State National Bank of Big Spring v. Geithner. As the Federalist Papers make clear, recess appointments were designed for the convenience of the Senate — so senators would not have to come back into town after recessing, to approve short-term appointments. President Obama’s argument to the Supreme Court twisted this purpose inside out and would have effectively gutted the Senate’s ability to review presidential appointments, requiring senators to remain in town, on duty, all the time if they wish to have any say in reviewing the qualifications of presidential appointees.
In addition to violating the Constitution through the Cordray appointment, the Obama administration has also violated the Constitution in various ways through the Dodd-Frank Act that Obama signed into law in 2010 (not just through the CFPB, which Dodd-Frank created and unconstitutionally insulated from political oversight, but also through other entities set up by Dodd-Frank, such as the Financial Stability Oversight Council, whose constitutional violations I discussed earlier in the Washington Post). The Dodd-Frank Act violates constitutional separation of powers safeguards and property rights, harms the U.S. and world economies, and weakens and distorts our financial system.
D.C. Circuit decisions had called into question Cordray’s actions while invalidly holding office (note, however, that Cordray was later confirmed by the Senate, after which point his invalid appointment became valid). Courts have repeatedly ruled that agency actions are invalid when they are taken, or merely influenced by, invalidly appointed government officials (indeed, one court ruling invalidated a commission’s actions because they might have been influenced by improperly-appointed non-voting officials who merely had an advisory role on the commission. See, e.g., FEC v. NRA Political Victory Fund, 6 F.3d 821, 824 (D.C. Cir. 1993)).