WASHINGTON (AP) — In an embarrassing setback for President Barack Obama, a federal appeals court panel ruled today that he violated the Constitution in making certain recess appointments.
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 — 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 threw into question Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment has been challenged in a separate case.
Obama made the recess appointments on Jan. 4, after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.
But during that time, GOP lawmakers argued, the Senate technically had stayed in session because it was gaveled in and out every few days for so-called “pro forma” sessions.
GOP lawmakers used the tactic — as Democrats had done in the past — specifically to prevent the president from using his recess power to install members to the labor board. They had also vigorously opposed the nomination of Cordray. The White House argued that the pro forma sessions — some lasting less than a minute — were a sham.
The three-judge panel, all appointed by Republican presidents, ruled that during one of those pro forma sessions on Jan. 3, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.