Early last year, President Barack Obama made recess appointments to add three new members to the National Labor Relations Board (NLRB). The Constitution allows a president to make such appointments when the Congress is not in session. And therein lies the problem with the moves made by President Obama — the Senate, which is constitutionally required to confirm appointments, was still in session.
The appointments were challenged in court by Senate Minority Leader Mitch McConnell and other Senate Republicans, who argued that President Obama had acted unconstitutionally. Today, the DC Circuit Court of Appeals agreed with McConnell, ruling that President Obama had indeed abused his authority:
The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said Obama did not have the power to make three recess appointments to the National Labor Relations Board because the Senate was officially in session - and not in recess - at the time. If the decision stands, it could invalidate hundreds of board decisions made over the past year.
The court said the president could only fill vacancies with the recess appointment procedure if the openings arise when the Senate is in an official recess, which it defined as the once-a-year break between sessions of Congress.
The White House is expected to appeal the ruling, either through a hearing in front of the full court or directly at the Supreme Court. Even if they do appeal, the Constitution is pretty cut and dry on the issue. It doesn’t provide loopholes for gridlock in the Senate.