Washington – A panel of Republican-appointed appellate judges has struck down President Obama’s appointment struck down of three members to the National Labor Relations Board during the winter 2012 congressional recess in an expansive ruling that invalidates more than a century of presidential practice.
The ruling by the U.S. Court of Appeals for the D.C. Circuit will now likely be appealed to the U.S. Supreme Court, but has the potential to also affect Obama’s concurrent appointment of Richard Cordray to lead the Consumer Financial Protection Bureau. It could also invalidate every ruling by the NLRB during the period between January 4, 2012 and today, as well as many actions by the CFPB during that period. The opinion is the latest demonstration of the radical views of Judge David Sentelle, who authored the opinion and has previously suggested that all business, labor and Wall Street regulation is constitutionally suspect.
The Constitution gives the president the power to make executive appointments when Congress is out of session, but some Republican members of Congress attempted to claim the January 4, 2012 appointments did not actually occur during a recess.
Obama resorted to the appointments following record obstruction of his nominees that left the NLRB without the quorum required to legally operate and the newly formed CFPB indefinitely without a leader, with Republicans claiming they would confirm no one to lead the organization unless its structure was fundamentally altered. The lack of a director also prevented the CFPB from performing several core functions, including regulating nonbank entities such as mortgage and payday lenders.
At the time of the Obama’s appointments, Republican pushback had focused on a tactic to prevent Congress from ever really going into “recess” by holding “pro forma” sessions every several days. In response, Obama’s Office of Legal Counsel issued a cogent legal memo rejecting the ability of Republicans to change a recess into something less by holding sessions in name only.
The D.C. Circuit’s opinion, however, goes well beyond this technicality argument to invalidate at least a century of accepted recess appointments procedure.
(Reprinted from ThinkProgress)