Senate Republicans met Tuesday with Miguel Estrada to receive an update on court proceedings that could fundamentally change the president’s perceived authority to make recess appointments.
Estrada was invited to the lunch by Senate Republican Conference Chairman John Barrasso of Wyoming and the GOP leadership team to discuss ongoing litigation challenging the constitutionality of President Barck Obama’s January 2012 decision to fill vacant seats on the National Labor Relations Board. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously Jan. 25 that Obama overstepped his constitutional authority when he made three appointments to the NLRB while the Senate was on a holiday break.
While specific to the NLRB, a similar decision by the Supreme Court could also cause problems for the Consumer Financial Protection Bureau, because Director Richard Cordray received a recess appointment on the same day as the NLRB picks.
The Obama administration and many Democrats contend that the Senate was in recess for the purpose of making recess appointments, a position Minority Leader Mitch McConnell of Kentucky and other Republicans have rejected. They retained Estrada as counsel.
“We asked Miguel Estrada to represent Senate Republicans and file an amicus brief in a case arising out of the state of Washington related to the NLRB appointments that were made by the president about 13 months ago when the Senate was still in session,” McConnell said.
Estrada, of course, was not able to secure the votes needed to limit debate on his own nomination to a federal appeals court during the George W. Bush administration.
“The smack-down by the three- judge court was pretty substantial,” McConnell said. “I wanted to give our members an opportunity to hear our lawyer’s take on it. He anticipates that it will end up in the Supreme Court.”
Majority Leader Harry Reid, D-Nev., told reporters Tuesday that he thought the Supreme Court would view the matter differently from the appeals court, noting that Democrats discussed the Cordray nomination during lunch. Obama re-nominated the former Ohio attorney general to the post earlier this year.
“Do I think the Supreme Court will turn over the D.C. Circuit’s opinion? Yes, I do think they’ll overturn that,” Reid said.
The Nevada Democrat added that he would like to see Cordray confirmed, as well as Marilyn Tavenner. She is Obama’s pick to head the Centers for Medicare and Medicaid Services. The previous head of the CMS, Donald M. Berwick, became so contentious that the Senate never considered his nomination. Berwick also received a recess appointment that could have been questionable under the standard suggested by the federal appeals court judges in the NLRB case.
When the three-judge panel ruled last month, the judges expressed a view that went farther than even some critics of Obama’s appointments could have anticipated.
The ruling said that the judges believed recess appointments could only be made during intersession recesses, and even then only for positions that come vacant during that time. Such a broad interpretation would call into question a slew of prior recess appointments.
A House Education and Workforce subpanel plans to hold a hearing Wednesday on the NLRB’s future, with several lawyers scheduled to testify. While it may look at the NLRB more broadly, there’s little doubt that the question of legality of decisions made by the board over the past year or so will come up for debate.