Bloomberg News reports:
President Barack Obama’s appointment of labor board members last year while most senators were out of town met 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 today, 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. . . .
During today’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.
“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.”
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. . . .