Fox News Misrepresents Radical Court Decision That Undermines Executive Action as Only a Victory Over President Obama
The DC Circuit opinion was the result of a company’s challenge to an adverse decision of the National Labor Relations Board. Backed by the U.S. Chamber of Commerce and Sekulow, the company argued that the NLRB’s decision that it had failed to abide by a collective bargaining agreement was in fact void, because three members of the Board allegedly had not been appointed pursuant to the president’s recess appointments power. That is, although the Constitution allows the president to make appointments to executive bodies while the Senate is in intrasession recess, because the Senate was in “pro forma session,” the NLRB appointments were improper. The DC Circuit did not accept this argument.
Instead, the DC Circuit took the radical and unprecedented step of declaring that the real problem wasn’t that Obama made the appointments while a Senate was pretending to be in session, but that the appointments happened during an intrasession recess as opposed to an intersession recess. Not only was this not what Kelly and Sekulow reported, but the ramifications of this decision go far beyond Obama’s appointments to the NLRB. Presidential appointments during intrasession recesses have occurred frequently since at least the 1940s. For example, former President George W. Bush made 141 intrasession appointments during his presidency. According to the DC Circuit, however, those are as invalid as are Obama’s three appointments to the NLRB.
As the DC Circuit admitted, this decision is in direct conflict with the 11th Circuit. Due to this circuit split and clear deviation from established government practice and law concerning presidential powers, the Supreme Court is certain to review the case.
However, the fact that it invalidates executive action taken by intrasession appointees is far more unsettling. Despite Kelly and Sekulow’s satisfaction that the DC Circuit has temporarily called into question NLRB decisions made during Obama’s presidency, they completely miss the bigger picture. This decision calls into question executive decisions taken by not only all 141 intrasession appointees of the past president, but agency actions taken by such appointees stretching back to World War II. The real story was once again a grim reminder of how important the DC Circuit is and that its current conservative makeup has far-reaching consequences.