First Legal Challenge Filed To Obama’s Recess Appointments

The first shot in a Constitutional showdown has been fired.

A courtroom in Washington, D.C. will be the setting for the first legal challenge to the recess appointments made by President Obama earlier this month, which Republicans and conservative legal scholars have contended are unconstitutional because Congress was not in fact in recess at the time:

A group of business organizations and individual firms on Friday began the first challenge to President Obama’s new government appointments while the Senate is out of town, using a case involving the National Labor Relations Board to test the issue.  In a motion filed in U.S. District Court in Washington, along with a legal memorandum, the challengers argued that the NLRB has no power to go ahead with a pending rule on workers’ rights because the three new appointees were not legally named, so the Board has no operating quorum.

Because the challenge puts a cloud of uncertainty over the NLRB’s authority to take any action, it appears likely that the courts will move quite rapidly to resolve the controversy.  Previously, when there were doubts about the Board’s membership, hundreds of actions it had taken had been put into a legal limbo, producing a significant Supreme Court ruling on that in 2010.

U.S. District Judge Amy Berman Jackson in Washington is hearing business challenges to a rule, not yet put into effect by the NLRB, that would require as many as six million employers to put up in their workplaces a permanent poster that notifies their employees of the legal rights they have under federal labor law.  That requirement, the so-called “notice posting” rule, is now due to go into effect on April 30.  It had been set to go into effect at the end of this month, but the Board postponed it in December at Judge Jackson’s specific request while she ponders the challenge (pending in National Association of Manufacturers, et al., v. NLRB, District Court docket 11-1629).

Although that rule was put into final form by the Board before the President early this month gave “recess appointments” to three new members, the motion filed Friday argued that those appointments are “unconstitutional, null and void,” reducing the Board to only two members, and thus the Board “no longer has authority to implement or enforce the Notice Rule on its purported effective date of April 30, 2012.”  (Under the Supreme Court decision in 2010, in New Process Steel, L.P. v. NLRB, the Board cannot take action with only two of its allotted five members.)

The potentially momentous fight over the Obama nominations thus will go first to a federal judge who has been on the bench for less than a year.  Named by President Obama initially in 2010 and renominated last year, she won unanimous Senate approval and formally joined the D.C. District Court last March 18.

The Memorandum can be found here, and is quite obviously only the beginning step in this matter. However Judge Jackson rules, this case is likely to be appealed to the D.C. Circuit Court of Appeals and, most likely, the Supreme Court given the unique nature of the Constitutional issues raised here. In all honestly, it’s hard to say how the Courts will approach this matter, though. Rather than ruling on the merits, they could end up dodging the entire thing given the judiciary’s historic reluctance to involve itself in political disputes between the Executive and Legislative Branches. Considering, though, that we’re talking about a question that goes to the nature and extent of the powers of the Presidency, though, I would hope that the Courts would be disinclined to do that and at least give us a final ruling rather than leaving it up to the President and Congress to fight about.

I’ve discussed the legal issues surrounding the President’s appointments and the legal impact of the Senate’s pro forma sessions of the Senate on the question of whether or not the Congress is actually in recess as that term is used in the Constitution. Since then, though, there has been some additional arguments made that will no doubt find their way into the legal pleadings destined to be filed in this case and its coming appeals. First, as Adam Serwer notes, late last week the Justice Department’s Office of Legal Counsel released the legal memorandum that it prepared for the White House to support the President’s authority to make these recess appointments notwithstanding the Senate’s pro forma sessions:

The opinion from the Office of Legal Counsel, authored by Assistant Attorney General Virginia Seitz, argues that these “pro forma” sessions, which have historically been used by both parties to deny presidents the ability to make executive and judicial appointments, can’t be used to block appointments unless the Senate is conducting actual business. The job of the OLC is to provide advice to the executive branch to ensure its actions comply with the law—although at moments under the Bush administration, OLC attorneys turned into virtual rubber-stamps for whatever actions the administration wanted to pursue.

Seitz writes that “while Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess.” Seitz points out that legislators have frequently referred to times of prolonged absences as “recesses,” even if Congress had not technically adjourned. (As Jonathan Bernstein noted, Tennessee Republican Rep. Diane Black said the president’s appointments were unconstitutional because Congress was not in recess, before complaining that the nominees were put forth “a mere two days before the Senate recessed for the holiday.”) Even the administration’s supporters however, have generally acknowledged that the legal questions here are a close call, and Seitz acknowledges there are “substantial arguments on each side.”

“[The opinion] is admirably forthright and candid about the closeness of the question and the arguments on the other side,” says Marty Lederman, a former attorney with the Office of Legal Counsel who, as counsel to Senator Ted Kennedy, had argued that such appointments were not constitutional. “It doesn’t hide anything.”

The OLC’s opinion should end speculation, put forth by conservatives like David Addington, former legal counsel to Vice President Dick Cheney, and even more progressive voices like Bruce Ackerman, that the president had not asked for advice from the Justice Department before making the appointments. The implication from some critics was that the administration knew the appointments were unconstitutional, and therefore didn’t ask.


The bottom line is this: The Justice Department takes the view that when the Senate “is not available to give advice and consent to executive nominations,” it is effectively in recess and the president can make appointments. Moreover, the opinion states that the Senate’s constitutional authority to set its own rules cannot be used to keep the president from making appointments. Key here is that the opinion doesn’t prevent the Senate from blocking appointments—it merely states that the Senate has to actually be in session in order to do so.

The OLC’s long single-spaced memorandum (just warning you) can be found here, and if you’re truly interested in the legal arguments that are likely to unfold over the course of this and probably other litigation that will be filed regarding these appointments, I’d recommend giving it a read. On the other side of the argument, though, Michael McConnell, who served for a decade on the 10th Circuit Court of Appeals and is now a senior scholar at Stanford Law School, is highly critical of the OLC’s reasoning and conclusion:

The Opinion places enormous weight on the fact that the Senate’s resolution providing for pro forma sessions declared that there would be “no business conducted.” There are two problems with this, as a legal matter.  First, as the Opinion concedes, the important question is whether at these sessions the Senate is “capable” of exercising its constitutional functions – not whether, on any particular occasion, it has chosen not to do so. Second, in actual fact the Senate has conducted major business during these sessions, including passing the payroll tax holiday extension during a pro forma session on December 23. The Opinion weakly responds that, notwithstanding this evidence of actual practice, the President “may properly rely on the public pronouncements of the Senate that it will not conduct business.” It is hard to see why the Senate’s stated intention not to do business takes legal and constitutional precedence over its manifest ability to do so. The President is well aware the Senate is doing business on these days, because he has signed two pieces of legislation passed during them.

More fundamentally, the Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes. According to the Opinion, a pro forma session is not sufficient to interrupt a recess for purposes of the Recess Appointments Clause, but it is sufficient to satisfy the constitutional command that neither branch adjourn for more than three days without the consent of the other (Art. I, §cl. 4) and that Congress convene on January 3 unless a law has provided for a different day. There is longstanding precedent that pro forma sessions are sufficient to satisfy these constitutional requirements. Why a pro forma session would count for some purposes and not others is a mystery. It is difficult to escape the conclusion that OLC is simply fashioning rules to reach to the outcomes it wishes.

Finally, it bears mention that a great deal of the authority OLC cites in support of the President’s authority to make recess appointments during intrasession recesses in the first place – wholly apart from the pro forma issue – consists of prior executive branch pronouncements that are at odds with both the language and the history of the constitutional text. It would not be surprising if the judiciary were to reject these self-serving executive interpretations in favor of more straightforward ones. In particular, courts might rule that the Recess Appointments Clause applies only when a vacancy “happens” during a recess, as the text of Att. II, § 2, cl. 3, says, and that “the recess” of the Senate occurs only between sessions, and not (as here) in the midst of a session. The OLC Opinion acknowledges as much, when it says that the appointments face “some litigation risk.” But the Obama Administration cannot be faulted for following longstanding executive precedent, which has been used by past Presidents both Republican and Democrat. It is only the novel arguments that I criticize here. It seems to me that the Administration is under special obligation to provide a bullet-proof legal argument when it declares invalid a strategy devised by Majority Leader Harry Reid in 2007, supported by then-Senator Barack Obama, and successfully used by them to stymie President George W. Bush’s recess appointment power. The law cannot change just because the shoe is on the other foot.

Reviewing again the arguments I made when this matter first came up, I still tend to think that the arguments in favor of Presidential power are likely to prevail in this matter in the end. However, there are issues that have been raised against the recess appointments that are admittedly persuasive. Perhaps the most important argument against what Obama did two weeks ago lies in the precedent that he has set. Leaving aside the legal challenges that have and will be filed to the appointments, President Obama has set a precedent here that will be followed by every President that follows him, just as Harry Reid’s decision to use pro forma sessions starting in 2007 as a tactic to block President Bush from utilizing his recess appointment powers set a precedent that the Republicans have followed since they took control of the House last year.  With the stroke of a pen, President Obama has enhanced the power of the Presidency and just as he did not abandon the additional powers asserted by President Bush, President Obama’s successors are unlikely to surrender this new power unless someone forces them to do it. The Democrats who are cheering the appointments of Richard Cordray and the two member of the NLRB today should ask themselves how they’ll feel if the same power is used by a President Mitt Romney to fill a bunch of judicial seats, and there’s no reason that could not happen when you remember that Earl Warren, William Brennan, and Potter Stewart  all made it on to the Supreme Court initially via recess appointments. Once you give the President a new power, or a new way to use their power, it will inevitably be used in ways you don’t like.

In any event, we’re going to hear much more about this issue in the weeks and months to come. Indeed, outside of the ruling on the Affordable Care Act it could potentially end up becoming the most important Constitutional case heard by the Supreme Court in quite a long time.

FILED UNDER: Barack Obama, Congress, Law and the Courts, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. sam says:

    “just as Harry Reid’s decision to use pro forma sessions starting in 2007 as a tactic to block President Obama ”

    President Bush, you meant.


    Rather than ruling on the merits, they could end up dodging the entire thing given the judiciary’s historic reluctance to involve itself in political disputes between the Executive and Legislative Branches.

    Indeed, my first thought was, Does the group of business organizations and individual firms have standing? This is a dispute between the elected branches. I’d think that at best such business organizations and individual firms might have amici status only, if anything.

  2. @sam:

    Generally yea they’ll have standing to challenge the NLRB rule

    And yea I meant Bush, fixed

  3. PogueMahone says:

    The Democrats who are cheering the appointments of Richard Cordray and the two member of the NLRB today should ask themselves how they’ll feel if the same power is used by a President Mitt Romney to fill a bunch of judicial seats…

    They’d feel sad, of course. So what? If the Dems do to the next Republican president – whomever and whenever that may occur – what the Republicans are doing now, then they’ll deserve it.

    This all becomes moot if the Senate does its constitutionally mandated job and approve or deny a sitting president’s nominees.

  4. sam says:

    I understand that they will be challenging the rule, but the basis of the challenge is lodged in a dispute between the elected branches. I’m guessing that’s one way the judiciary can duck this particular case: (Basically), Gee, we’d like to help you out here, but neither you nor us judges can get into that fight in court. You, of course, can contact your senator, representative,or the president and make your objections known. Next case.

  5. OzarkHillbilly says:

    Seeing as they have admitted to being in recess on several occasions (google “Debt ceiling”) how can they now say they are not?

    Is you is, or is you ain’t?

    ps: clarification; The law is an ass. The SC decided that Corporations are people and that money is speech. So who would be surprised when they say “Congress” is in session when even (Republican) “Congressmen” say they aren’t?

    I give you today’s political field.

  6. The SC decided that Corporations are people

    Wow, the extent to which that is wrong is utterly amazing. But we’ll leave that for tomorrow when I talk about campaign finance.

  7. sam says:

    @Doug Mataconis:

    Wow, the extent to which that is wrong is utterly amazing.

    Will you be mentioning Mittens in your piece?

  8. Hey Norm says:

    So big business is sueing to keep from having to inform workers of their rights.
    And this is a losing issue for Democrats how?

  9. Ron Beasley says:

    This will have nothing to do with the constitution . The only question will be do the Supremes want to gift this power to the next Republican president. If I had to guess I would say yes although I think it’s just as likely they will decide to not get involved.

  10. Eric says:

    @Doug Mataconis:

    I’m guessing you’ll be talking about how the 14th amendment was the basis for corporate personhood?

    I’m actually looking forward to the article right now.

  11. PD Shaw says:

    Excellent post. This sort of reminds me of some of the initial national security positions taken by Cheney in the early Bush years; he won many and lost many. But in many respects, we as a nation lost the benefits of the ambiguous tension between many different potential applicaable rules. Some conflicts are best unresolved because usually not one position is 100% correct.

  12. Tsar Nicholas says:

    I’ve always felt the Senate should be viewed as being akin to that of a junior associate to the President’s senior partner level, so here I have to side with Obama. The Senate should not be able to block recess appointments with what amounts to weak legal fictions. If I were Obama I’d recess every vacancy until the Senate allowed up or down votes on all my nominees.

  13. @OzarkHillbilly:

    and that money is speech.

    Suppose that congress passed a law stating that while abortions are completely legal, no one may receive more than a specified dollar amount for performing one, that any such payment must be reported to the government, and that the government must make available a searchable online database of all abortion related payments, along with the identities of the people making those payments.

    If the courts struck down the law as an unconstitutional infringement on the right to an abortion, would it be fair to summarize the ruling as the court saying that “money is an abortion”?

  14. OzarkHillbilly says:


    I’m actually looking forward to the article right now.

    So am I. The next thing we know, Doug will tell us how money is speech and therefor some people have more speech than others.

    I can not wait.

  15. OzarkHillbilly says:

    @Stormy Dragon:

    Huh? Really Stormy, try again. You are usually far more succinct that that. I think you are trying to say that money is speech… with out ever touching on the fact that that means some people have more speech than others.

    If I am wrong, please elucidate me.

    I take it back. I just reread your post and I don’t have a clue what you are saying.

  16. @OzarkHillbilly:

    What I’m saying is that at some point, barring people from spending money to exercise a particular right becomes an infringement on that right. You may disagree where the dividing line should be, but denying the line exists at all and describing anyone who thinks otherwise as believing “money is speech” is reductive to the point of silliness.

  17. OzarkHillbilly says:

    @Stormy Dragon:

    What I’m saying is that at some point, barring people from spending money to exercise a particular right becomes an infringement on that right.

    Stormy, Corporations are not people, and no where in the constitution can you find a right to more speech for some than others. Everybody has the same right of free speech. (and I get the “money is speech” argument…. but the logical conclusion of such a position is unsustainable )

    Maybe I am wrong. But I would rather go to my grave being “wrong” about this, because if I am “wrong”, the constitution is seriously flawed. Why exactly you are unable to see this I do not know, but it is your right of free speech that is diminished as well

  18. @OzarkHillbilly:

    Best Boy Productions, Inc. and Viacom are not people. That doesn’t mean the government can ban the Daily Show from mocking the President without violating the first ammendment. That doesn’t mean the government can say they can only do the show as long as Jon Stewart is willing to work for free. That doesn’t mean they can require Comedy Central to cancel The Colbert Report and air The Half Hour News Hour so that Stewart’s opponents get “the same amount of speech”.

    Corporations are not people and speech is not money. But at some point attempts to control corporations and money become infringements on the rights of actual people to engage in actual speech.

  19. @Stormy Dragon:

    Sorry, I meant Busboy Productions, Inc.

  20. Jeremy says:

    @Stormy Dragon: +1 million.

  21. Rick DeMent says:

    Money does not buy speech in any quantity … money can only buy an audiance. The constitution gaurentees free speech … it does not gaurentee an audiance and that is where the money = sppech notion file on all levels.

  22. Rick DeMent says:

    Sorry about the typos

  23. Jeremy says:

    @Rick DeMent:

    You’re DeMented. You have clemency on that front.

    However, I don’t know about speech. If you want to run an ad, but that costs money, and you don’t have the money so it never gets aired, your speech is never spoken…that’s not guaranteeing an audience (since they could change the channel anyways), that’s guaranteeing your speech.

  24. PD Shaw says:

    @Stormy Dragon: Or you can ask whether the right of “the accused . . . to have the Assistance of Counsel for his defence” requires anything more than for the accused to have an attorney at his/her own expense. After all legal assistance is different than money.

  25. WR says:

    @OzarkHillbilly: “The next thing we know, Doug will tell us how money is speech and therefor some people have more speech than others.”

    You mean “some people DESERVE TO have more speech than others.” Remember, he’s a “libertarian.”

  26. Rick DeMent says:


    However, I don’t know about speech. If you want to run an ad, but that costs money, and you don’t have the money so it never gets aired, your speech is never spoken…that’s not guaranteeing an audience (since they could change the channel anyways), that’s guaranteeing your speech.

    But your speech is not guaranteed in the constitution, the only thing the constitution guarantees is that the congress shall make no law abridging the freedom of speech. Giving money to a politician as a proxy for speech is simply not what founders had in mind. They were thinking about the government censoring the contest of speech. period; end of story. and campaign finance laws don’t censor the content of speech.

    Television ads only helps your speech gain a wider audience. Freedom of speech has nothing whatsoever to do with that. Freedom of speech is about the government coming along and telling you that you can’t say this or you can’t say that. You have the freedom to stand in the public square (or the officially designated free speech zone ) and say all you want without the government shutting you down; period. The constitution does not, and never has guaranteed that your speech will get a wider audience. Look at the first amendment, read it again. There isn’t even a penumbra or emanation that says your have a right to be heard by a wide audience of people. or you have a right to effective speech.

    On the other hand if you want to argue that the constitution guarantees that your speech will have a sufficiently wide audience then please make that case. And if you try here are few things that you will have to address:

    Where exactly in the constitution is there anything that would suggest that speech should not only be protected from government interference but is protected from inefficiency due to the cost of advertising? Did the founders put any language in the constitution that would suggest it was OK to force newspapers to print opinions and editorials that were counter to those of the editors despite the fact that printing presses were expensive and not everyone has the money to access them?

    Can I argue that since I don’t have enough money to run my ad during the super bowl that my speech is being censored?

    Are you ready to institute some kind of fairness doctrine to make sure everyone’s has a base level of constitutionally protected “effectiveness”?

    Effective speech needs to be fair speech, if you can afford to buy more air time then I can, then I should get equal time for free otherwise my speech will not get my constitutionally protected effectiveness.

    I think these are the kinds of questions you have to deal with when you start saying that if no one can hear your speech then it’s being censored by the government therefor money = speech.