A court ruling that President Barack Obama's recess appointment of labor board members was illegal in part because the Senate was in session stands against rulings by three sister courts supporting the power, one of which warned that "executive paralysis" would result otherwise.
A unanimous panel of the U.S. Court of Appeals in Washington sided last week with Republican lawmakers who claimed the 2012 appointments to the National Labor Relations Board were unconstitutional. The picks, made after Republicans refused to consider Obama's nominees, were "constitutionally invalid" because the Senate wasn't in recess at the time, the panel held. The court went further, saying valid appointments could only be made for vacancies that occurred while the Senate was adjourned.
If the Washington court ruling is upheld by the U.S. Supreme Court, then it may mean the Senate has always had the power to block recess appointments, according to Edward Hartnett, a constitutional law professor at Seton Hall University.
"To conclude the D.C. circuit is right you'd have to conclude that presidents dating back to at least James Madison have been wrong," Hartnett said in a telephone interview. "For a practice that presidents have engaged in since close to founding of our nation, it's hard to conclude that all acted unconstitutionally."
The Washington court panel was made up of three Republican appointees. It was the first time a federal appeals court ruled the Constitution limits the president's power to make recess appointments to the period between sessions of Congress, and only if that vacancy arises during that period.
The U.S. Court of Appeals for the Eleventh Circuit in Atlanta rejected similar arguments in 2004 by Democratic Senator Ted Kennedy when it upheld President George W. Bush's recess pick of U.S. Circuit Judge William Pryor.
U.S. appeals courts in Manhattan and San Francisco have also approved a more expansive use of the appointment power in rulings involving nominees made by President Dwight Eisenhower, a Republican, and President Jimmy Carter, a Democrat.
"Every once in a while you get a panel of judges who have a different take on the issue, then you have a split," John Elwood, a former Justice Department official in the George W. Bush administration, said in a telephone interview. "All the judges are very independent on the D.C. Circuit."
In the near-term, the Jan. 25 ruling, one of about a dozen similar cases pending over the NLRB picks, may be used to undo more than 200 decisions by the board over the past year, as well as regulations by the Consumer Financial Protection Bureau, whose director, Richard Cordray, was named at the same time as the board members.
The White House said the ruling won't affect Cordray and is restricted to the company at issue. Republicans, meanwhile, have demanded the NLRB appointees quit immediately.