Furthermore the three-judge panel ruled the way recess appointments have been made by all recent presidents have been unconstitutional. arguing that the president's recess appointment powers don't apply to "intrasession" appointments (such as when they close for a holiday) only after Congress has adjourned a session permanently, which usually means only at the end of a year.
During the initial hearing:
Mr. Obama argued that since the full Senate wasn’t actually meeting regularly, lawmakers were technically in an intra-session “recess” and he could use his constitutional power to make appointments not needing the chamber’s consent. But two judges on the U.S. Court of Appeals for the D.C. Circuit questioned not only that move, but every recess appointment made other than during a traditional inter-session recesses that close out each year.It is not know whether the Judge had to explain to the president's lawyers what the constitution is and why it's important.
“Once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” said Judge Thomas B. Griffith.
He was joined in his pointed questioning by Chief Judge David B. Sentelle, who said the clause in the Constitution giving presidents recess appointment powers refers to “the recess,” which he said suggests the one at the end of each year, not the breaks Congress regularly takes for holidays, weekends or other reasons.OOPs there is that constitution thing again...the President has been ignoring it since he took office.
If the court were to rule that way, it would upset the balance that has been maintained over decades, and would conflict with another appeals court’s precedent — though that didn’t bother Judge Sentelle.
“Forget about a century of precedent — go back to the Constitution,” he told Beth Brinkmann, the Justice Department lawyer who argued the case for the Obama administration.
In its ruling the court said in its duty was not to speed up government, but to hold to constitutional principles.
"If some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands," the judges wrote.
"The dearth of intra-session appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments," the judges wrote. "Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law."The NLRB said it was not yet ready to respond to the ruling Friday morning, and the Justice Department didn't respond to a request for comment. The case was brought to trial when Noel Canning, a bottling company, sued the NLRB (based on a ruling against the company, arguing that a rule issued by the new board was illegal since the recess appointments were unconstitutional. Senate Republicans, led by Minority Leader Mitch McConnell, joined in the suit.
The judges said the recess power was created for a time when Congress met only a few months out of the year, and was designed for the president to fill vacancies during the long periods when Congress was out. In modern times, when Congress is almost always capable of meeting, the recess powers should be more circumscribed.
The Obama appointments were unprecedented as they were made at time when the Senate was meeting every third day — specifically to deny him the chance to make an appointment without the "advice and consent" of the senate.
Expect an appeal.