Court rules Obama recess appointments unconstitutional

A federal appeals court ruled Friday that President Barack Obama violated the Constitution when he made three recess appointments to the National Labor Relations Board last January.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit held that Obama did not have the power to bypass the Senate and make the appointments.

The Obama administration has repeatedly asserted that the appointments to the NLRB were legitimate because he made them when the Senate was away during a 20-day holiday recess a year ago. The appeals court strongly disagreed, ruling that the Senate was technically in session because it was gaveled in and out every few days as part of a tactic that created ‘‘pro forma’’ sessions.


Both Republican and Democratic lawmakers have used the tactic of ‘‘pro forma’’ sessions to block presidents from making recess appointments.

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The court’s decision also raises doubts about the legitimacy of Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau.

Cordray’s appointment, which is being challenged in a separate lawsuit, was also made last January under the same recess circumstances. On Thursday, Obama announced he was again nominating Cordray to that position, voicing hope that Senate Republicans would not block confirmation this time, as they did with the previous nomination of Cordray.

The White House criticized Friday’s ruling, saying it would severely weaken the president’s ability to make recess appointments when Republicans have threatened filibusters to block many of his nominations.

''The decision is novel and unprecedented, and it contradicts 150 years of practice by Democratic and Republican administrations,’’ Jay Carney, the White House press secretary, said at the daily press briefing. ‘‘We respectfully but strongly disagree with the ruling.’’


Mitch McConnell, the Senate Republican leader, applauded the ruling, saying the court ‘‘reaffirmed that the Constitution is not an inconvenience, but the law of the land.’’ He added that letting ‘‘the president decide when the Senate is in recess would demolish the checks and balances’’ in the advise-and-consent process.

McConnell and 41 other Republican senators had filed an amicus brief in the case, challenging the validity of the appointments.

Many Republicans and business associations have derided the labor board under Obama, saying it has become a tool of organized labor. But many Democrats and labor unions responded that Obama’s appointments had merely restored ideological balance to the board after it had favored business interests under President George W. Bush.

The Obama administration is likely to appeal Friday’s ruling to the U.S. Supreme Court.

But if the ruling is upheld, it would invalidate scores of decisions that the labor board has made since last January.


The board would be left with just one validly appointed member — its chairman, Mark Gaston Pearce — who was confirmed by the Senate. Under a 2010 Supreme Court decision, the labor board, which has five seats, is authorized to issue decisions only when it has three or more sitting members.

On Jan. 4, 2012, Obama made the three recess appointments to the labor board. They were two Democrats — Deputy Labor Secretary Sharon Block; Richard Griffin, general counsel to the operating engineers union — and one Republican, Terence Flynn, a counsel to an NLRB member. Flynn resigned from the board last May after he was accused of leaking materials about the NLRB’s internal deliberations.

The three federal judges who issued Friday’s ruling were all Republican appointees. The decision was written by David B. Sentelle, an appointee of President Ronald Reagan who is chief judge of the federal appellate court in Washington, D.C.