A federal appeals court has ruled that President Barack Obama violated the Constitution when he made two recess appointments while the Senate was still in session.
The D.C. Circuit Court of Appeals said the president’s 2012 appointment of two controversial members of the National Labor Relations Board violated the Constitution’s mandate that recess power is reserved for vacancies that happen when Congress is in recess.
“We hold that the appointment to that seat is invalid because the President must make the recess appointment during the same intersession recess when the vacancy for that office arose,” the court said in the ruling.
Section 2, Clause Three of the Constitution grants “the president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
Glenn Taubman, an attorney with the National Right to Work Legal Defense Foundation, which joined the suit, called the case a win for “the constitution and checks and balances”
“This upends the way the recess appointment power has been misused by presidents for decades,” he said. “It restores the Senate’s power to advise and consent, which is what the founders designed.”
The court has placed a stay on its order, as it expects appeals to be filed, but the decision could reverse far more than recess power.
In addition to invalidating the appointments of board members Richard Griffin and Sharon Block, it could also undo dozens of decisions issued since they joined the board, including controversial rulings that expanded union power to collect dues from non-members.
The decisions would not be automatically vacated.
“Anybody who appeals to the D.C. circuit can have the [NLRB] decision vacated … the parties still have to file appeals,” Taubman said.