The Wall Street Journal recently joined Fox News in attempting to rewrite a radical and unprecedented federal appellate court opinion to fit their caricature of a “lawless” President Obama. But even as a WSJ editorial picks up Fox News' misrepresentation of the appellate court's sweeping decision on the constitutional legitimacy of presidential recess appointments as a narrow swipe at Obama, the Fox-fueled version is starting to unravel.
On January 29, the WSJ published an editorial that claimed “the latest disdain for the Constitution's checks and balances” was the Obama administration's response to a recent outlier opinion of the D.C. Circuit Court of Appeals. This decision broke with centuries of practice and case law by holding presidents can only make recess appointments when both a vacancy and appointment occur in-between congressional sessions. Specifically, the WSJ was offended that the National Labor Relations Board accurately pointed out the opinion was technically limited to the party that brought the case - despite its serious implications for all other similarly situated plaintiffs - and not only was it not currently in effect, it might be overturned on appeal. From the WSJ editorial, which accused the NLRB of planning to “ignore” the opinion:
So, let's see. First, President Obama bypasses the Senate's advice and consent power by making “recess” appointments while the Senate was in pro-forma session specifically to prevent recess appointments. Then when a federal court rules the recess appointments illegal, the NLRB declares that it will keep doing business as if nothing happened.
Without Mr. Obama's illegal appointments, the board would have been without a quorum and unable to decide a single case. That lawless behavior means more than 200 of the NLRB's rulings in the past year are in limbo. It's bad enough to force those 200 litigants to appeal rulings that are sure to be overturned. But the board wants to keep issuing new rulings though it now knows that a unanimous appeals court has declared them illegal, pending a Supreme Court review that may never happen.
Following Fox News' lead, the WSJ recycled the allegation that the holding depends on President Obama's recent challenge to the new parliamentary trick of the Senate to declare itself in “pro forma” session in order to prevent the type of intrasession appointments that have occurred for over two hundred years. In fact, the decision by the extremely conservative U.S. Court of Appeals for the DC Circuit, regularly referred to as the second most important court in the nation, skipped by the question of the legitimacy of the Senate's “pro-forma” sessions in order to craft an entirely new interpretation of the Constitution's recess appointments clause. As described by The Los Angeles Times:
In ruling on that lawsuit, the U.S. Court of Appeals for the District of Columbia Circuit was expected to focus on the fact that Obama made the appointments at a time when the Senate was holding pro forma sessions at which no business was transacted. Instead, the court reached beyond that issue to lay down a sweeping rule that presidents may make recess appointments only in the break between formal sessions of Congress, a hiatus that now occurs only once a year (and sometimes not at all).
Unsurprisingly, because the appellate court's opinion is in direct odds with the 11th Circuit and contradicts long-standing presidential practice, the NLRB is signaling it will appeal. Contrary to the WSJ, legal experts believe Supreme Court review is inevitable, and the WSJ's further protest that the NLRB intends to “keep doing business” ignores basic court procedure. As explained by Reuters:
Although the three-judge ruling on Friday upturned 190 years of understanding about how a president may fill vacant jobs, it will not take effect immediately.
Under court rules, the Justice Department has 45 days to decide whether to ask the full, eight-judge Washington-based appeals court to reconsider the decision and 90 days to consider an appeal to the U.S. Supreme Court.
WSJ's inaccurate narrative that the decision demands the entire process of judicial review stop and the NLRB close its doors and admit its “lawless behavior” is still being repeated in some corners of Fox News. On the January 28 edition of Hannity, Fox News' Sean Hannity lumped the DC Circuit decision - “a real big loss for [the President]” - into the (repeatedly discredited) “growing list” of “how far Obama is willing to stretch the Constitution and his presidential powers.” Hannity did not bother to actually describe the substance of the opinion for his viewers.
Fox & Friends, however, did end up discussing the actual details of the case on its January 29 show. Although co-host Brian Kilmeade repeated the WSJ's allegation that President Obama was ignoring the opinion and argued “why don't we start ignoring the White House” in retribution, Fox News legal analyst Andrew Napolitano pointed out that this opinion went against bipartisan practice for at least 75 years. Napolitano and Kilmeade also both recognized that if the decision stands, it renders President George W. Bush's 141 intrasession recess appointments - including that of frequent Fox News contributor and former Ambassador John Bolton - illegitimate. Peculiarly, in light of his admission of former President Bush's extensive use of intrasession recess appointments, Napolitano still characterized the fact that President Obama's much smaller use of this constitutional authority - 26 compared to Bush's 141 - was “so liberal, so aggressive” that a lawsuit was inevitable. Both still accused the Obama administration of lawlessness.
But in the same edition of Fox & Friends, when asked as a legal expert about the appellate court's “terrible blow” to the White House, Fox News contributor Laura Ingraham didn't even try to explain why an opinion that upends American history and case law is actually a demonstration of President Obama's nefarious behavior. She instead said she “would rather talk about the Diet Coke guy.”
Unlike the editors of the WSJ, it looks like someone at Fox News is starting to actually read accurate analysis of the opinion and the network's attempts to mischaracterize the opinion are becoming transparent. Hopefully, Fox News will take the next step and point out that decisions of this sort have become depressingly common for this crucial appellate court on which Republicans refuse to allow Democratic appointees to serve. As reported by CNN legal expert Jeffrey Toobin, the consequences of this obstructionism are not only legal, but nakedly partisan:
The decision matters because it is a huge gift to the contemporary Republican Party--especially to Republican senators. Senate Republicans have engaged in an unprecedented level of obstruction of President Obama's nominations--to executive-branch positions, to independent agencies, and especially to federal judgeships. Recess appointments have given Obama a small degree of leverage to fight back. Characteristically, he hasn't used this power much, especially compared with his predecessors; Obama has tried to negotiate his way out of the problem, with little to show for it. But the D.C. Circuit decision, if it stands, essentially gives veto power to Senate Republicans. If they simply refuse to act on Obama's appointments, he is now powerless to respond. The opinion also said that any action taken by improper recess appointees would be invalid. So the opinion could paralyze a major chunk of the federal government.
Where, one might ask, were President Obama's appointees to the D.C. Circuit, often described as the second most important court in the country? After four-plus years as President, Obama has succeeded in placing exactly zero judges on this court. The reasons for this absence reflect the strange record of this President on judicial appointments. To some extent, Obama has simply been asleep at this particular switch, nominating judges late or not at all. Obama did nothing while D.C. Circuit vacancies lingered, before finally nominating Caitlin Halligan, a widely respected New York prosecutor. Halligan, in turn, was shamefully filibustered by the Republicans in the Senate, like so many other Obama appointees. Obama has resubmitted Halligan, along with another excellent nominee, Sri Srinivasan, to the Senate--where they languish. Thanks to Sentelle's decision to take senior status, there are now four vacancies on the D.C. Circuit. Obama's lassitude plus the Republicans' obstruction equals decisions like this one on recess appointments.