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Appeals court panel rules Obama recess appointments to labor board are ... - Washington Post

Posted: 25 Jan 2013 09:29 AM PST

WASHINGTON — In an embarrassing setback for President Barack Obama, a federal appeals court panel ruled Friday that he violated the Constitution in making certain recess appointments and moved to curtail a chief executive's ability in the future to circumvent the Senate in such scenarios.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board because the Senate was officially in session — and not in recess — at the time. If the decision stands, it could invalidate hundreds of board decisions.

The court said the president could only fill vacancies with the recess appointment procedure if the openings arise when the Senate is in an official recess, which it defined as the break between sessions of Congress.

The ruling threw into question Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, also made at the same time, has been challenged in a separate case.

The White House had no immediate comment.

Obama made the recess appointments on Jan. 4, 2012, after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.

But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for so-called "pro forma" sessions.

GOP lawmakers used the tactic — as Democrats had done in the past — specifically to prevent the president from using his recess power to install members to the labor board. They had also vigorously opposed the nomination of Cordray. The White House argued that the pro forma sessions — some lasting less than a minute — were a sham.

The three-judge panel, all appointed by Republican presidents, ruled that during one of those pro forma sessions on Jan. 3, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.

"Either the Senate is in session, or it is in recess," Chief Judge David Sentelle wrote in the 46-page ruling. "If it has broken for three days within an ongoing session, it is not in "the Recess" described in the Constitution."

Simply taking a break of an evening or a weekend during a regular working session cannot count, he said. Sentelle said that otherwise "the president could make appointments any time the Senate so much as broke for lunch."

The judge rejected arguments from the Justice Department's Office of Legal Counsel, which claimed the president has discretion to decide that the Senate is unavailable to perform its advice and consent function.

"Allowing the president to define the scope of his own appointment power would eviscerate the Constitution's separation of powers," Sentelle wrote.

Sentelle was joined in the ruling by Judge Thomas Griffith, appointed to the court by President George W. Bush, and Karen LeCraft Henderson, who was appointed by President George H.W. Bush.

The Obama administration is expected to appeal the decision to the U.S. Supreme Court. But if the ruling stands, it means that hundreds of decisions issued by the board over more than a year would be invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

Obama used the recess appointment to appoint Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the NLRB, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.

The court's decision is a victory for Republicans and business groups that have been attacking the labor board for issuing a series of decisions and rules that make it easier for the nation's labor unions to organize new members.

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Follow Sam Hananel on Twitter: http://twitter.com/SamHananelAP

Obama Shakes Up White House as He Names Chief of Staff - New York Times

Posted: 25 Jan 2013 09:28 AM PST

By PETER BAKER

Published: January 25, 2013

WASHINGTON — President Obama shook up his White House staff on Friday, installing a new team largely made up of familiar faces moved to different positions as he gears up for an intense push on sweeping legislation early in his second term.

Mr. Obama named Denis R. McDonough, a longtime aide and currently the principal deputy national security adviser, as his new White House chief of staff, and he will shuffle around a series of other officials in the West Wing. The president made his announcement in the East Room in the early afternoon.

Moving up to deputy chief of staff will be Rob Nabors, currently the president's legislative affairs chief, and replacing Mr. McDonough at the National Security Council will be Tony Blinken, the national security adviser to Vice President Joseph R. Biden Jr. Dan Pfeiffer, the White House communications director and another early Obama aide, will move up to senior adviser, replacing David Plouffe, who is departing this week.

Replacing Mr. Pfeiffer as communications chief will be his deputy, Jennifer Palmieri, a veteran of Bill Clinton's White House. Serving as deputy senior adviser for communications and strategy will be David Simas, a former White House aide who served as head of polling and focus-group research for the president's re-election campaign. Replacing Mr. Nabors running the legislative affairs office will be Miguel Rodriguez, a former aide to departing Secretary of State Hillary Rodham Clinton and more recently Senate liaison for the Obama White House.

Lisa Monaco, currently the assistant attorney general for national security, will move over to the White House to replace John O. Brennan, the president's adviser for homeland security and counterterrorism, who has been tapped to take over as director of the Central Intelligence Agency if confirmed by the Senate.

The White House announced separately Friday that Christopher P. Lu, one of Mr. Obama's early aides dating back to his Senate days, will be leaving as White House cabinet secretary, the liaison to the various government departments. Replacing him will be Danielle Gray, the deputy director of the White House National Economic Council. Katy Kale will become the president's assistant for management and administration, moving up from deputy.

Mr. Obama released a statement praising Mr. Lu and his "dedication and tireless efforts." The president made clear that he does not accept Mr. Lu's departure, saying he has asked him to return in another capacity. "After he enjoys some time off, I hope he will consider those opportunities," Mr. Obama said.

In a separate move, the first lady's deputy communications director, Semonti Stephens, announced Thursday that she was leaving to move to San Francisco.

Kredit: www.nst.com.my

Jumaat, 25 Januari 2013