02/04/2013 08:40 pm ET Updated Feb 05, 2013

Obama Recess Appointment Ruling Would Have Altered Course Of History, Congressional Study Finds

WASHINGTON -- The research arm of the U.S. Congress has studied the controversial appeals court ruling striking down President Barack Obama's recess appointments to the National Labor Relations Board, concluding that the decision would have theoretically scuttled scores of presidential appointments stretching back to the Ronald Reagan era.

In a letter dated Monday, analysts at the Congressional Research Service said the decision by the U.S. Court of Appeals for the District of Columbia Circuit, known as Noel Canning v. NLRB, would have drastically altered the course of history had it been issued in 1981, the first year the authors studied. Reagan, George H.W. Bush, Bill Clinton, George W. Bush and Obama all likely would have been stymied by the ruling, leaving an untold number of government appointments unfilled, the study said.

"It is possible that the President would have been precluded from making many of the appointments listed in this memorandum," the researchers wrote. "It appears that each of the Noel Canning criteria could have precluded some recess appointments."

The study was requested by Democrats on the House Education and the Workforce Committee, which oversees the NLRB, and appears to confirm the White House contention that the ruling by a panel of three Republican-appointed judges upends decades of tradition regarding recess appointments.

"This shows the D.C. circuit court ruling was way outside of mainstream thought and practice on presidential recess appointments," said Aaron Albright, a spokesman for the House committee.

The Noel Canning ruling dealt specifically with three appointments that Obama made to the labor board last January, but the decision may cast doubt on others, including Obama's appointment of Richard Cordray to head the Consumer Financial Protection Board. Obama had made the appointments when the Senate was conducting "pro forma" sessions and therefore technically still in session, critics of the appointments have contended.

But the judges went a good deal further, ruling that the president can only make such appointments when Congress is between sessions, rather than merely on an "intrasession" break. Furthermore, as the research report put it, the ruling suggested that when it comes to intersession appointments, "such appointments can be made only to vacancies that have occurred during the recess in which the appointment is made" -- drastically limiting the president's power. Legal observers have said they expect the Supreme Court to take up the case.

The elimination of intrasession appointments would have been particularly frustrating for George W. Bush, according to the report. He made an estimated 141 such appointments, compared with Obama's 26. From massive agencies like the Agriculture and Education departments to more obscure bodies like the Federal Maritime Commission and the Legal Services Corp., scores of Bush appointments apparently would have been invalid under Noel Canning.

Reagan, too, would have been severely hemmed in by the ruling. Reagan made an estimated 232 recess appointments, followed by George W. Bush with 171, Clinton with 139, George H.W. Bush with 78 and Obama with 32.

Setting aside the broader ramifications on recess appointments, if the Noel decision is upheld it would leave the NLRB -- the agency tasked with enforcing labor law on unions and companies -- without the quorum it needs to function. It may nullify more than 200 decisions the board has issued in the past year, since it would have done so without a legitimate quorum. The business lobby has already begun using the appeals court ruling to challenge court decisions favorable to unions.



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