The old line used by teenagers everywhere to justify their behavior, “but everybody’s doing it!” might come in handy for President Obama on his much-criticized recess appointments, which were the subject of a recent court ruling.
Hundreds of recess appointments under Presidents Ronald Reagan, Bill Clinton and both George Bushes would have been unlawful under the court’s decision, according to a new report by the Congressional Research Service.
In Noel Canning v. NLRB, the D.C. Circuit Court of Appeals found that three of Obama’s controversial recess appointments to the National Labor Relations Board, made while the Senate was on a holiday break, were unlawful. When Obama made his NLRB appointments, the Senate had been gavelling in every few days to prevent such appointments, but the White House contended that the chamber’s minute-long sessions didn’t really count.
Intrasession appointments (the ones made when the Senate recesses during a congressional session) are a no-no, the court said. Only intersession appointments (those made when the Senate stands in recess between sessions of Congress), are okay, it ruled. (A separate appeals court had reached a different conclusion, and the case seems likely to head to the Supreme Court.)
CRS combed through the records and found 329 other appointments by Obama and his four predecessors that would have fallen into the now-taboo criteria.
George W. Bush was the biggest fan of the intrasession appointment, with 141 such nominations. Reagan made 72, George H.W. Bush made 37; Clinton had 53, and Obama 26. However, the report doesn’t address whether these appointments were made when the Senate was having those short, pro-forma sessions that the Obama White House called bogus.
This is all an academic exercise, of course, since “almost all” of the appointments mentioned in the report have ended, the report notes, and because the court’s ruling was limited to those three NLRB officials. But it does give a sense of just how far-reaching the ruling was.