The court said the president made the appointments to the National Labor Relations Board in January 2012 when the Senate was not in recess. The court said a new session began Jan. 3 while the appointments were made Jan. 4, Politico reported.
White House spokesman Jay Carney discounted the impact of the ruling, saying it applies only to a case "brought by a specific company and the decision applies to that case. It does not apply more broadly than that."
"An interpretation of 'the recess' that permits the president to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law," said Chief Judge David Sentelle of the District of Columbia circuit.
Sentelle and the two judges who concurred in his opinion were appointed by Republican presidents, the Los Angeles Times said.
The administration is expected to appeal the ruling to the U.S. Supreme Court. If the ruling stands, it would give more power to the Republican minority in the Senate to block presidential appointments.
A similar challenge is before the courts on Richard Cordray, who was named head of the Consumer Financial Protection Agency at the same time. Obama reappointed Cordray this month using his recess authority.
Obama made the recess appointments after Republicans in the Senate blocked efforts to approve his nominations, leaving the NLRB without enough members to make decisions.
C. Boyden Gray, former counsel to President George H.W. Bush and the lead counsel in litigation to invalidate CFPB actions made under Cordray, said the ruling has two important consequences: "First, the President has no power to declare when a recess exists, as he did in the case of the NLRB and the appointment of Richard Cordray as director of the CFPB under Dodd Frank; as a result the recess appointments are invalid.
"Second, the illegality of Cordray's appointment casts serious doubt on the legality of CFPB actions implemented since his appointment. It should be added, however, that the question of the validity of his appointment is only one of several issues involved in determining the constitutionality of the CFPB."
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