11/29/2012 1:42:00 PM Courts to consider Obama appointments
WASHINGTON (AP) — In a major test of presidential power, federal appeals courts are starting to hear legal challenges to President Barack Obama’s decision to bypass the Senate in appointing three members to the National Labor Relations Board.
The challenges in more than two dozen labor cases around the country have been winding their way through the legal system since Jan. 4, when Obama moved to fill vacancies on the board under the constitutional provision for filling an office when Congress is in recess.
Obama’s move outraged business groups and Republican leaders, who contend the appointments were unconstitutional because the Senate was technically in session when the president acted. Administration officials say the Senate was actually in a 20-day recess, and the tactic of gaveling in and out of session every few days solely to avoid being in recess was a sham.
The 7th U.S. Circuit Court of Appeals in Chicago will be the first court to hear oral arguments on the issue Friday. The U.S. Court of Appeals for the District of Columbia Circuit will take up the issue in a similar case on Wednesday.
The courts will determine whether Congress can indefinitely block a president from appointing key administration officials by staying in pro forma sessions — where one Senator briefly goes into the chamber and no real business is conducted.
Legal experts say the outcome is uncertain because there is little precedent on the issue. Compelling arguments can be made to support both the exercise of the president’s appointment power and the authority of the Senate to decide when it is in recess.
“All bets are off in this case,” said Carl Tobias, law professor at the University of Richmond. “It’s a close question because there are good arguments on both sides.”
Ultimately, the issue is likely to end up before the U.S. Supreme Court sometime in the next year.
Obama has said he made the recess appointments to prevent the labor board from effectively being shut down, unable to referee labor-management disputes or rule on unfair labor practices.Obama also used his recess appointment power in January to install Ohio attorney general Richard Cordray as head of the Consumer Financial Protection Bureau.