Nobody outside the GOP was paying much attention when President Obama used recess appointments as a way to circumvent the Senate approval process last year; this week one federal court was paying very close attention.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board (NLRB) because the Senate was officially in session and not in recess at the time of the appointments. Unless the matter is heard and overturned by the U.S. Supreme court it will invalidate hundreds of decisions made by the NLRB.


In addition to the invalidation of the NLRB appointments the ruling will also have an effect on Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, also made while the Congress was in pro forma session, has been challenged in a separate case.

The White House has failed to respond to the court’s ruling though many believe they will challenge the ruling in the Supreme Court; it is widely felt that the nation’s highest court will choose to pass on the case leaving the Appeals Court rulings standing.

Obama made the appointments on Jan. 4, 2012, after Senate Republicans spent months blocking his choices for the NLRB believing the president’s selections were biased in favor of unions. Obama has claimed he acted properly because the Senate was away for the holidays on a 20-day recess; however either house can remain in pro forma session by gaveling in and out a session at least once every three days. The Constitution allows the president to make appointments without Senate approval but only when officially in recess.

President violates the Constitution with NLRB recess appointments

During the time the president made the NLRB appointments the Senate stayed in session because it was gaveled in and out within the proscribed periods; the court agreed.

While the White House argued in court that the pro forma sessions, some lasting less than a few minutes, were a sham, the three-judge panel ruled that during one of those pro forma sessions on Jan. 3, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.

“Either the Senate is in session, or it is in recess,” Chief Judge David Sentelle wrote in the 46-page ruling. “If it has broken for three days within an ongoing session, it is not in “the Recess” described in the Constitution.”

Simply taking a break of an evening or a weekend during a regular working session cannot count, he said. Sentelle said that otherwise “the president could make appointments any time the Senate so much as broke for lunch.”

The court also rejected arguments from the White House which claimed the president has discretion to decide that the Senate is unavailable to perform its advice and consent function, which he did when making the NLRB appointments.

“Allowing the president to define the scope of his own appointment power would eviscerate the Constitution’s separation of powers,” Sentelle wrote.

Almost certainly hundreds of decisions issued by the NLRB during its last session will be reversed and the five-member board will be left with just one legally appointed member; the NLRB can only issue decisions when there are at least three sitting members.

The court’s decision is a major victory for Republicans and business groups that have been frustrated by liberal NLRB decisions and rules that have made it easier for unions to organize new members. Most importantly the ruling is a huge embarrassment for the Obama administration that has often skirted the law through the use of regulations, executive orders and questionable appointments to achieve their goals.


Listen to Mr. Kaplan on NTN Radio Fridays at 3pm EST
Subscribe to Mr. Kaplan’s articles at
Read Mr. Kaplan’s blog at Conservatively Speaking
Email Mr. Kaplan at
Follow Mr. Kaplan’s tweets at ConsSpeaking