Obama’s appointments were ruled unconstitutional Friday.
By JOSH GERSTEIN | 1/25/13 10:03 PM EST

President Barack Obama made a big gamble last January when he issued four recess appointments during a three-day break between meetings of the Senate — and with the court ruling Friday broadly undercutting his ability to make such appointments, he may have lost even bigger.

The White House knew Obama was provoking a high-profile constitutional fight by circumventing Senate approval for three nominees to the National Labor Relations Board and Richard Cordray to lead the Consumer Financial Protection Bureau.

But legal experts say the former constitutional law professor almost certainly did not anticipate the gamble going as spectacularly sour as it did Friday when a federal appeals court not only invalidated the three NLRB appointments but cut the heart out of the recess appointment power presidents of both parties have wielded for two centuries.

“In the past, executive authority has expanded and expanded and expanded, so they thought: let’s go for it,” said Bruce Fein, a Justice Department lawyer in the Reagan administration who publicly disputed Obama’s power to make the appointments. “Now, they’re far worse off than before because the lines are drawn much more narrowly in terms of what anyone thought were [the president’s] abilities previous to this ruling…. It’s an overreach, and he ends up now worse off than where he began.

“I don’t think anybody even thought it would happen in this case,” said John Elwood, a George W. Bush administration lawyer who wrote a 2010 op-ed piece backing Obama’s right to make appointments amidst the Senate’s brief, “pro forma” sessions. “They took a kind of calculated risk and it went beyond what they probably thought was the worst-case scenario.”

“The loss is way bigger than the battle he thought he was fighting,” said Denise Keyser, a labor lawyer with the Ballard Spahr law firm in New Jersey. “If this is upheld, this is such a huge loss for the president and for the way the country has functioned for so many years…..I don’t think anybody, when he made the appointments, foresaw that the court would do this.”

While the president surely suffered an unexpectedly bad result, the D.C. Circuit’s opinion Friday is far from the last word on the subject. The administration could ask the full bench of the appeals court to take up the case. The Justice Department could also try to take the case to the Supreme Court.

Several lawyers said Friday that one of Obama’s best hopes at the moment is that the very expansiveness of the D.C. Circuit’s decision will undermine it.

“If this ruling is upheld, as a practical matter, it will negate the president’s recess appointment power. He won’t have it any more,” said one prominent D.C. lawyer who asked not to be named to avoid complicating cases handled by his law firm. “It really is a big deal.”

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