The United States District Court of Appeals for the District of Columbia held today that the three 2012 appointments to the National Labor Relations Board by President Obama violated the Appointments Clause of the Constitution. The Court reasoned that the appointments were made without the advice and consent of the Senate, and were not permissible under the Recess Appointments Clause of the Constitution. The Court noted that the Senate, not having adjourned sine die, and having entered into the Second Session of the 112th Congress simultaneously with the expiration of the First Session, was not in the Recess at the time of the purported appointments. The panel found that the appointments were also unconstitutional because the Recess Appointments Clause only extends to vacancies that “happen” during the Recess. The three vacancies did not “happen” during the Recess and thus the Recess Appointments Clause did not apply. The decision may be found here.
The decision calls into question the status of Consumer Financial Protection Bureau Director Richard Cordray, which is under challenge in a separate action. Mr. Cordray’s appointment was at the same time and pursuant to the same Recess appointment authority.