Pejman Yousefzadeh

As I have written many times before, the same people who denounced the supposed imperial presidency of George W. Bush have shown that they have no problem whatsoever with the vast expansion of presidential power now that their guy—Barack Obama—is in the Oval Office. One of President Obama’s genuinely audacious power grabs involved making recess appointments during periods when the Senate was not officially in recess. Indeed, the Senate actually was in session at the time that the recess appointments were made; Republicans—like Democrats before them when Republican presidents were in office—ensured that pro forma sessions took place to prevent any recess appointments from occurring.

Team Obama thought that it could get away with making recess appointments in between pro forma sessions, despite the fact that the Senate wasn’t actually in recess during those times. A three-judge panel for the D.C. Circuit Court of Appeals disagreed:

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said Obama did not have the power to make three recess appointments to the National Labor Relations Board because the Senate was officially in session - and not in recess - at the time. If the decision stands, it could invalidate hundreds of board decisions made over the past year.

The court also ruled that the president could only make recess appointments if the openings arise when the Senate is in an official recess, which it defined as the once-a-year break between sessions of Congress.

[…]

The ruling also threw into question the legitimacy of Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, also made on Jan. 4, 2012, has been challenged in a separate case.

Now, to be fair, the story mentions that there are a number of circuit courts of appeal that have held differently regarding the recess appointment power. And it is entirely possible that an en banc panel of the D.C. Circuit Court of Appeals and/or the Supreme Court will overturn the three-judge panel’s ruling. But the ruling i still quite significant, if only because it might serve to give genuine imperial presidencies pause before they try to engage in novel efforts to expand the president’s power. Few people deny that under our current legal scheme, the office of the presidency is—to paraphrase from the movies—cloaked in immense power. But even immense power is supposed to observe certain limits.