A federal appeals court not only questioned the recess appointments Obama made to the National Labor Relations Board last January (while congress was still in session) but questioned whether the entire way recess appointments are made is constitutional.

Last January — during a time when the Senate was holding pro forma sessions every three days to prevent the President from making appointments, Obama appointed Democratic union lawyer Richard Griffin, Democratic Labor Department
official Sharon Block and Republican NLRB lawyer Terence Flynn to the board.

Mr. Obama argued that since the full Senate wasn’t actually meeting regularly, lawmakers were technically in an intra-session “recess” and he could use his constitutional power to make appointments not needing the chamber’s consent. But two judges on the U.S. Court of Appeals for the D.C. Circuit questioned not only that move, but every recess appointment made other than during a traditional inter-session recesses that close out each year.

“Once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” said Judge Thomas B. Griffith.

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It is not know whether the Judge had to explain to the president’s lawyers what the constitution is and why it’s important.

He was joined in his pointed questioning by Chief Judge David B. Sentelle, who said the clause in the Constitution giving presidents recess appointment powers refers to “the recess,” which he said suggests the one at the end of each year, not the breaks Congress regularly takes for holidays, weekends or other reasons.

If the court were to rule that way, it would upset the balance that has been maintained over decades, and would conflict with another appeals court’s precedent — though that didn’t bother Judge Sentelle.

“Forget about a century of precedent — go back to the Constitution,” he told Beth Brinkmann, the Justice Department lawyer who argued the case for the Obama administration.

OOPs there is that constitution thing again…the President has been ignoring it since he took office.

The Constitution uses the words “session” and “recess” to refer to several different types of business and breaks. One use of “recess” is for a break from normal legislative business, whether for an hour for lunch or for several days while lawmakers go home. The other is at the end of each year’s session, when Congress adjourns sine die, meaning it won’t meet again.

That has produced two centuries of confusion.

Could it be? Federal Judges actually caring about the constitution?  Maybe somebody could tell Chief Justice Roberts about it.

The judges did question whether they should be involved in the case at all because it wasn’t the entire Senate complaining just the GOP Senators.  In the end the court should rule on the issue because the president’s “recess” appointments seem to be power-grab which tried to deprive the Senate of its constitutional duty of approving presidential appointments. However, the question about whether or not they should be involved in this case may be an indication that these judges may lose their nerve and take the easy way out. They may say its simply a battle between the two political parties and they have no jurisdiction.