In July 2011, the Environmental Protection Agency issued regulations to address air pollution that crosses state lines, using powers granted to the agency under the Clean Air Act.
The new regulations would have required states to reduce power plant emissions and prevent the pollution from crossing into neighboring states. It was as part of a so-called transport rule, which the EPA estimated would annually prevent between 13,000 and 34,000 premature deaths; 19,000 hospital and emergency room visits; and 1.8 million days of missed school or work.
But a power company that runs a coal-burning power station in Homer City, Pa., sued the EPA in the D.C. District Court and said it was overstepping its authority.
A three-judge panel was assigned per the random system, and arguments were given on both sides.
In August 2012, the court sided with the power company in a 2-to-1 ruling. The two judges ruling against the EPA were appointed by President George W. Bush. The one dissenting judge was appointed by President Clinton.
“The sense after, and it lingers today, is that the ruling was so devastating that the Clean Air Act control program in question has been stripped of all real meaning,” said John D. Walke, who is the clean air director for the Natural Resources Defense Council, which signed onto the case with the EPA. “It was that dramatic in depriving the Clean Air Act of any vitality.”
In 2011, the FDA passed new regulations requiring cigarette companies to display nine different graphic images on their packages. One included a cadaver with chest staples, another black lungs of a longtime smoker.
Some of the country’s top tobacco companies, including RJ Reynolds, sued the FDA, saying they overstepped their authority. It went beyond providing consumers with factual information about their product, they argued, and instead turned their packaging into a billboard for the government’s antismoking campaign.
In 2012, when the case got to the D.C. Circuit Court, three judges were assigned to the panel. Two were appointed by Republican presidents, one was appointed by a Democratic president. The two GOP appointees ruled against the FDA, while the Democratic appointee ruled in favor.
The government lost the case, and has been considering an appeal.
In January, the court ruled on a case involving the National Labor Relations Board, and whether its decisions could be invalidated because some of its members were appointed by Obama when the Senate wasn’t in session.
The NLRB had ruled that Noel Canning, a Pepsi bottling company from Yakima, Wash., had violated labor laws, including executing a collective-bargaining agreement that had been reached with the union. The bottling company sued, saying the decision was invalid because three of the five members of the board were so-called recess appointments.
It was a highly-watched case, because it could have a cascading effect on hundreds of other appointments made by Obama. House Speaker John Boehner and McConnell, the Senate minority leader, had attorneys arguing on their behalf, in favor of Canning’s argument.
The D.C. Circuit’s three-judge panel ruled in Noel Canning’s favor, saying Obama’s appointments were unconstitutional. The ruling, which the government is now preparing to appeal, reversed decades of precedent and threw into doubt hundreds of other appointments that Obama has made — as well as decisions that have been implemented by those appointees.
But those who argued the case said the odds were stacked against them even before arguments began.
Because of the ideological complexion of the court, they said, the case was bound to be ruled for Noel Canning. And indeed, all three judges on the case had been appointed by a Republican president.
“Just imagine a bingo wheel,” said Victor Williams, an attorney and a professor at Catholic University of America School of Law, who filed a brief siding with the NLRB. “If you have seven balls to spit out to fill up the three-judge panel instead of 11, there is a real possibility there would have been a more reasoned judge on that panel. It really is a classic example that it does matter if we keep our benches full or not.”
“It is more than just dysfunctional,” he added of the confirmation process. “It genuinely is broken.”
There was no small bit of irony in the decision: Obama made recess appointments because the Senate refused to approve his nominees. And those appointments were ruled invalid by a court where Obama has been unable to get any of his nominees approved.Continued...