The U.S. Court of Appeals for the District of
Columbia just ruled that three recess appointments made by President Barack
Obama last year are constitutionally invalid.
The Court ruled specifically on appointments made to the National Labor
Relations Board (NLRB) during a Congressional recess last January but the
ruling has implications for the recess appointment of Richard Cordray to be
Director of the Consumer Financial Protection Bureau which was made on the same
The Office of White House Counsel has not yet
reacted to the decision but it is nearly certain they will appeal it to the
Supreme Court. If allowed to stand the
Appeals Court ruling invalidates dozens of decisions made by the NLRB over the
last year. Cordray’s appointment is
being challenged in a separate court case which could have similar implications
for the copious rulemaking done by CFPB under his directorship.
The NLRB appointment and that of Cordray were made
by the President during a Senate recess because Senate Republicans had blocked all
four appointments with the threat of filibusters. The three NLRB nominees were blocked because
the minority party considered them too pro-union. Republicans admitted that Cordray was well
qualified for his position but they were opposed to the existence of CFPB which
was established by the Dodd-Frank Wall Street Reform Act.
The Court said that recess appointments were intended to fill vacancies that
occurred during congressional recesses rather than to circumvent senate
confirmations. “Considering the
text, history, and structure of the Constitution, these appointments were
invalid from their inception,” the judges said.
had also contended that they were not in actual recess at the time. Even though most members had dispersed to
their home states for the Christmas/New Years holidays they had arranged for
members who remained in the Washington area to gavel the otherwise empty
chamber to order each day precisely to thwart recess appointments.