Third court overturns Obama recess appointments
By Stephen Dinan

The Washington Times

Wednesday, July 17, 2013
A third federal appeals court ruled Wednesday that President Obama violated the Constitution last year when he made recess appointments to the National Labor Relations Board, adding more weight to the case as it goes before the Supreme Court in the justices’ next session.

The Fourth U.S. Circuit Court of Appeals, in a 2-1 decision, said that the president can only make recess appointments after Congress has adjourned “sine die,” which in modern times has meant when it breaks at the end of each year.

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That ruling rejects Mr. Obama’s own interpretation that he can make appointments whenever he deems the Senate to be unable to give him “advice and consent” on his nominees.

After digging through constitutional history and reading up on the framers, the judges said it’s apparent the founding fathers intended for the president only to be able to use his recess appointment powers when the Senate was gone for a long period of time, not the brief breaks Congress regularly takes for holidays or weekends.

“All this points to the inescapable conclusion that the framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings,” Judge Clyde H. Hamilton wrote in his majority opinion.

He was joined by Judge Allyson K. Duncan, who filed a concurring opinion. Judge Hamilton was nominated to the bench by President George H.W. Bush and Judge Duncan was tapped by President George W. Bush.

In dissent, Judge Albert Diaz, whom Mr. Obama nominated to the court, said he read the same textual passages of the Constitution as the other two judges, but was unable to find a clear meaning, and he said he would have upheld the nominees as constitutional.

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