Obama's Abuse of Power

An appeals court says his recess appointments are unconstitutional.

President Obama has shown increasing contempt for the constitutional limits on his power, and the courts are finally awakening to the news. A unanimous panel of the D.C. Circuit Court of Appeals ruled on Friday that the President's non-recess recess appointments are illegal and an abuse of executive power.

On January 4, 2012, Mr. Obama bypassed the Senate's advice and consent power by naming three new members of the National Labor Relations Board and appointing Richard Cordrayto run the Consumer Financial Protection Bureau. Other Presidents have made recess appointments and we've supported that executive authority.

But here's the Obama kicker: He consciously made those "recess" appointments when the Senate wasn't in recess but was conducting pro-forma sessions precisely so Mr. Obama couldn't make a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.

In Noel Canning v. NLRB, a Washington state Pepsi bottler challenged a board decision on grounds that the recess appointments were invalid and that the NLRB thus lacked the three-member quorum required to conduct business. The D.C. Circuit agreed, while whistling a 98 mile-per-hour, chin-high fastball past the White House about the separation of powers.