But what about the D.C. Court of Appeals ruling that Obama's recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau that the president's recess appointment power only exists for the very brief period every two year between Congresses?
This widely criticized opinion, however, is unlikely to be upheld by the Supreme Court because it would require the justices to retroactively invalidate literally hundreds of recess appointments in just the last several presidencies.Obama has definitely become more confrontational in his appointment-making. His three nominations to D.C. Circuit were made in the face of escalated Republican threats to eliminate seats to that court. This week, he made three more nominations to district courts. The White House has also reportedly given its support to a filibuster reform effort in the Senate, telling Reid that Vice President Joe Biden would use his 51st vote to change the rules, if necessary.
Significantly, while the Supreme Court agreed to review the D.C. Circuit’s decision, it asked the parties to brief an additional question that the lower court did not decide in its sweeping opinion—“[w]hether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.” This is a strong indication that the justices may be willing to uphold the power of pro forma sessions to nix the recess appointments power, but they are not willing to cast the past actions of hundreds of former government officials in doubt.
If Obama really wants to take Senate GOP obstruction head on, he could take the opportunity the Senate recess is providing and reappoint the expiring NLRB and CFPB nominees. Millhiser argues that doing this would "cut off the strongest legal argument against his current recess appointees," that argument being that recess appointments during pro forma sessions aren't allowed, but those appointments during full recesses are. If the Court were to invalidate the appointments, it would invalidate everything that the NRLB and CFPB has done while these recess-appointed directors held office. That would have to be a factor in the Court's decision-making.
Reappointing them would be strong, decisive move, showing Republicans that their obstruction has finally become reached the limits of what the White House will put up with.
Clearly, re-opening filibuster reform is the solution—or we will see this quagmire over and over again. Tell your Democratic Senator to re-open filibuster reform.