The Slatest

Court Rules Obama Appointments Violated Constitution

US President Barack Obama speaks following a meeting with congressional leaders in the Brady Briefing Room of the White House on December 28, 2012

Photo by Mandel Ngan/AFP/Getty Images.

A federal appeals court offered an unexpected rebuke to President Obama today, ruling that he violated the Constitution last year when he bypassed the Senate to fill a trio of vacancies on the National Labor Relations Board. The Associated Press with the details:

The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions. The ruling also throws into question Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, also made under the recess circumstance, has been challenged in a separate case.


The Constitution allows the president to make such appointments without Senate approval when the chamber is not in session. Because of that, the White House contends that Obama followed the letter of the law because these particular appointments came while lawmakers were away from Washington during a 20-day holiday recess. The panel, however, didn’t buy that argument because of a procedural technicality employed by Republicans to prevent such recess appointments.


Basically, GOP lawmakers ensured that the Senate technically stayed in session despite the absence of nearly the entire upper chamber by quickly gaveling the body in and out every few days for what is known in Beltway-speak as “pro forma” sessions. While it was Republicans who were behind the the maneuver this time, Democrats have used the same trick in the past to handcuff Republican presidents as well.

Today’s decision, from a three-person panel made up entirely of judges appointed by past Republican presidents, would curtail the president’s ability to make recess appointments in the future because, under the court’s definition, the Senate is only in official recess during breaks between sessions of Congress.

Republicans specific complaint with Obama’s NLRB appointments was that they thought they were too pro-union. The administration is expected to appeal the ruling. But if it stands, the New York Times explains, “it would invalidate scores of decisions that the labor board has made since last January.”