In an embarrassing setback for President Barack Obama, a federal appellate panel has ruled that he violated the Constitution in making recess appointments last year, a decision that would effectively curtail a president’s ability to bypass the Senate to fill administration vacancies. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board because the Senate was officially in session—and not in recess—at the time. If the decision stands, it could invalidate hundreds of board decisions.
The court said the president could only fill vacancies with the recess appointment procedure if the openings arise when the Senate is in an official recess, which it defined as the break between sessions of Congress. The ruling also threw into question Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, also made at the same time, has been challenged in a separate case. The White House is expected to appeal the decision. The same issue is currently before several other federal appeals courts.
The decision is a victory for Republicans and business groups that have been attacking the labor board for issuing a series of decisions and rules that make it easier for the nation’s labor unions to organize new members. Obama made the recess appointments on Jan. 4, 2012, after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions.