Yesterday, the US Court of Appeals for the District of Columbia (the court of jurisdiction, for those who are interested in such things, because this is the appellate court for matters pertaining to the NLRB orders) ruled unanimously that President Barack Obama’s “recess” appointments to the National Labor Relations Board of Richard Griffin, Sharon Block, and Terence Flynn (the latter of whom resigned from the NLRB shortly after) were “constitutionally invalid” because the Senate was not in recess at the time of the appointments.
Writing for the court, Judge David Sentelle had this to say, according to Bloomberg at the above link:
Considering the text, history and structure of the Constitution, these appointments were invalid from their inception[.]
The court expanded on that point in equally clear terms:
…the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings [an adjournment].
…
The natural interpretation of the [Recess Appointments] Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in “the Recess.”
The court noted further that the Senate was in session at the time of these…appointments.
…the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued.
This also has implications for Richard Cordray and the Consumer Financial Protection Bureau he was “appointed” to chair, since he was put up in that same now known to be illegal batch of “appointments” as those NLRB folks. The thousands of pages of regulations that board has already written now are of only questionable validity; although the question here isn’t so cut and dried: the CFPB had a quorum, and the matter here is the necessity of a formally seated chairman. It also lends color to his nomination, for the current Senate’s consideration, to that same post.
Apparently, though, there are limits to Obama’s fiat governance.
